^\ 

r  ^ 

!  A    REPLY 

i' 

TO     THE 

Jieuiciij  of  Judge  ^tlcocate  ^fncral^olt, 

OF     THE 

Proceedings,  Findings  and  Sentence, 


OF    THE 


GENERAL  COURT  MARTIAL, 


IX   THE   CASE   OF 


Major  General  Fitz  John  Porter, 

And  a  YixDicATiON  of  that  Officer, 
By  REVERDY  JOHNSON. 


ill 


Baltimohe:  . .  .  Piuxted  by  John  Murphy  &  Co. 

Publishers,  Booksellers,  Printers  and  Stationers, 

182  Baltimore  Sthebt. 
1863. 


vi 


A    REPLY 


^    *  I       J  1  Sentence, 

^         ^  .  .RTIAL, 


ohil  Porter 


iT  Officer, 


J  nFSON. 


—  ...  -  ...., ..,..  X.X  w ^jnN  Murphy  &  Co. 

Publishers,  Booksellers,  Printers  and  Stationers, 

18  2    Baltimore    S  r  i;  e  e  t  . 
1  8  G  3. 


A.    REPLY 


Pcdcic  o);^u%c  ^dtiocate  (li)cneral^oIt, 


OF    THE 


Proceeding's,  Findings  and  Sentence, 


or     THE 


GENERAL  COURT  MARTIAL, 


IK    THE    CASE    OF 


Major  General  Fitz  John  Porter, 


And  a  Vindication  of  that  Officer, 


By  REVERDY  JOHNSON. 


Baltimore  :...  Printed  by  John  Murphy  &  Co. 

Publishers,  Booksellers,  Printers  and  Stationers, 


182   Baltimore   Street. 
1  8  G  3. 


The  preparation  of  this  Reply  was  delayed  until  a  printed  copy 
of  the  Record  in  the  case  of  Major  General  Fitz  John  Portee 
was  obtained,  and  since,  by  professional  engagements,  which  the 
writer  was  not  at  liberty  to  set  aside.  It  is  now  si\bmitted  in  the 
confidence  that  the  intelligent  and  impartial  reader  will  coincide 
in  opinion  with  the  writer,  that  a  greater  injustice  was  never  done 
through  the  forms  of  a  judicial  proceeding,  than  was  done  by  the 
sentence  of  the  Court  Martial  in  the  case  of  that  gallant  officer. 

Baltimore,  July,  1863. 


^ 

•0 

:^ 

M    Note. — The  references  to  the  evidence,  &c.,  are  to  the  Eecord  of  the  trial, 
-^as  published  bj'  order  of  the  House  of  Kepresentatives, — Ex.  Doe.  No.  71.     37th 
Congress,  3d  Session. 


REPLY. 


To  vindicate  a  citizen  unjustly  assailed,  is  the  duty  of  all  men  who  pro- 
perly estimate  the  value  of  individual  character  and  its  influence  on  the 
public  good.  The  duty  is  the  more  imperative,  if  the  services  of  such 
citizen  have  contributed  to  the  honor  of  his  country,  and  have  been  ren- 
dered with  great  toil  and  solicitude,  and  amidst  frequent  and  imminent 
perils.  To  this  general  obligation  in  the  instance  which  causes  this 
paper,  there  is  with  the  writer  superinduced  the  special  one  growing  out  of 
the  professional  relation  in  which  he  has  heretofore  stood  to  the  officer 
whose  case  forms  its  subject.  His  first  personal  acquaintance  with 
Major  General  FiTZ  John  Porter  was,  when  he  became  one  of  his  counsel 
on  his  recent  trial  Before  then,  he  knew  him  only,  (and  who  did  not  so 
know  him  Mho  has  followed  the  history  of  our  sad  civil  war,)  as  a  pa- 
triotic, skillful  and  gallant  officer,  giving  his  days  and  nights  to  duty,  ever 
discharging  it  to  its  fullest  measure,  and  on  all  occasions  answering  the 
highest  expectations  of  his  superior  officers,  his  friends  and  country.  In 
his  hands  the  military  service  had  not  only  suffered  no  dishonor,  but  had 
attained  even  higher  distinction.  He  had  achieved  for  himself  a  name  of 
which  the  nation  was  justly  proud,  and  a  reputation  amongst  all  those  of 
his  brothers  in  arms,  who,  being  themselves  worthy  of  their  noble  profes- 
sion, saw,  without  envy,  every  manifestation  of  his  skill  and  gallantry  and 
rejoiced  at  it  as  enhancing  the  reputation  of  the  service,  and  giving  the 
assurance  that  a  patriotic  soldiery  led,  as  Porter  led  his  men,  could  not  fail 
to  extinguish  the  rebellion,  restore  the  people  to  their  former  happiness  and 
prosperity,  reinstate  the  Government  in  its  rightful  authority,  and  give  it  a 
name  with  the  nations  of  the  world,  even  brighter  and  more  commanding 
than  it  had  ever  possessed.  The  high  esteem  in  which,  in  common  with 
all,  the  writer  held  Porter,  was,  if  possible,  increased  after  he  became  his 
counsel.  And  to  that  esteem  was  then  soon  added  the  closer,  and  even 
stronger,  ties  of  personal  friendship.  For  weeks,  seeing  him  almost 
constantly,  not  only  in  the  Court  by  whom  his  case  was  tried,  but  in 
private  consultation,  he  had  every  opportunity  of  becoming  acquainted 
with  the  man,  and  as  far  as  he  is  capable  of  judging,  with  the  officer. 
He  witnessed  in  the  former  that  freedom  from  vanity,  that  mildness 
of  disposition,  with  that  firmness  of  purpose  which  are  often  united, 
and  a  strong  sense  of  honor  that  won  for  him  his  highest  regard,  and 
in  the  latter  a  devotion  to  his  profession,  a  perfect  acquaintance  with 
all  the  conflicts  in  which  he  had  been  engaged,  a  cheerful  readiness  in 


6 

rendering  honor  where  honor  was  dne,  a  mildness  of  sensure  Avhere  he 
thought  errors  had  been  committed,  an  ardent  love  of  country,  and  a 
confident  conciousness  of  innocence  of  the  charges  whicli  he  was  to  answer, 
wliicli,  independent  of  all  other  evidence,  satisfied  him  that  such  charges 
were  in  every  particular  wholly  unfounded. 

"When  the  evidence  was  all  given,  he  regrets  to  be  compelled  to  say, 
that  he  was  further  satisfied  that  they  were  as  malicious  as  unfounded. 
But,  though  then,  and  still  so  convinced,  he  would  never  have  deemed  it 
necessary  to  bring  his  case  again  before  the  public  in  the  form  of  a  vindica- 
tion, notwithstanding  the  sentence  of  the  Court  affirming  their  truth,  but 
for  the  reasons  he  is  about  to  give.  A  defence  was  made  before  the  sen- 
tence was  pronounced,  and  by  all  who  heard  it,  or  who  have  since  read  it, 
a  defence  considered  as  triumphant  and  unanswerable.  So  universal  was 
this  opinion,  that  when  the  evidence  and  the  defence  had  been  seen,  an 
acquittal  was  anticipated  with  undoubting  confidence.  So  great  and 
general  was  that  confidence,  that  never  in  the  history  of  jurisprudence,  civil, 
criminal  or  military,  was  a  judgment  announced  that  so  shocked  and 
startled  the  sense  of  public  justice.  In  speaking  of  the  ability  of  the  de- 
fence, the  undersigned  but  pays  a  just  tribute  to  his  associate  counsel, 
Mr.  Charles  Eames,  by  whom  it  was,  in  everything  deserving  praise,  ex- 
clusively prepared.  But  what  occurred  without  the  knowledge  of  General 
Porter,  or  his  counsel,  whilst  the  case  was  progressing,  and  in  the  Court, 
whilst  the  evidence  was  being  given,  and  at  the  close  of  the  reading  of 
the  defence,  and  what  has  since  occurred  has  rendered  it  proper  in  the 
opinion  of  the  writer,  that  the  public  judgment  should  be  again  invoked. 
Upon  various  grounds,  it  is  not  less  due  to  Porter,  and  to  truth — than  to 
the  good  of  the  military  service,  and  to  the  confidence  so  material  to  that 
good  which  is  to  be  placed  in  future  military  judgments,  that  the  atten- 
tion of  the  public  mind  should  be  once  more  invited.  The  grounds  re- 
ferred to,  are  these  : 

I. — Pending  the  trial,  the  evidence  of  three  of  the  leading  witnesses  of 
the  prosecution.  Major  General  Pope,  Brigadier  General  Roberts,  and 
Lieut.  Colonel  Thomas  C.  H.  Smith,  was  secretly  and  annonyinously 
published  in  Washington,  in  pamphlet  form,  with  a  title  page  which,  as 
evidently  intended,  would  lead  the  reader  to  suppose  that  it  contained 
either  all  the  evidence  in  the  case,  or  that  the  evidence  that  it  did  con- 
tain, was  in  no  particular  rebutted  by  other  proof.  Porter  has  since 
discovered  that  the  cost  of  this  publication  was  paid  by  Smith,  and  that 
Roberts  transmitted  copies  to  persons  in  several  of  the  Northern  States, 
and  as  believed,  to  many  members  of  the  Senate  of  the  United  States,  a 
fact  disclosed  in  part  in  a  short  debate  in  that  body  at  its  recent  session. 
On  a  motion  calling  for  the  Record  for  the  purpose  of  publication — Mr. 
Fessenden  objected,  because,  as  he  stated,  the  Record  had  already  been 


printed,  a  copy  of  it  having  been  sent  to  hira  (by  whom  sent  he  did  not 
say,  because  he  did  not  know,)  but  doul)tless  by  Roberts,  or  by  his  direc- 
tion. Even  by  so  discerning  a  gentleman  and  accomplished  a  lawyer  as 
Fessenden,  the  fraud  of  the  publication  was  not  discovered. 

II. — The  rulings  of  the  Court,  (which  for  obvious  reasons  could  not  be 
commented  upon  in  the  defence,)  on  questions  of  the  admissibility  of  evid- 
ence in  some  instances,  and  as  the  undersigned  believes  in  all,  were  so 
palpably  erroneous,  and  so  injurious  to  Porter,  that  they  foreshadowed 
in  colors  too  striking  to  be  mistaken,  the  result  to  which  a  majority  of 
the  Court  would  arrive.  These  errors  were  so  apparent  as  to  excite  the 
surprise,  and  incur  the  censure,  as  the  writer  knew  at  the  time  of  distin- 
guished Judges,  and  member  of  the  bar  without  an  exception,  unless  the 
Judge  Advocate  was  one.  It  is  not  meant  to  say  that  he  was,  especially 
as  on  more  than  one  occasion,  he  himself  intimated  the  error  and  induced 
the  Court  to  correct  it. 

III. — When  the  evidence  was  all  introduced,  the  counsel  of  Porter 
requested  to  have  until  the  following  Monday  to  prepare  the  defence,  but 
the  Court  suggested,  because  of  other  pressing  engagements  of  some  of 
the  members,  the  following  Saturday.  This  suggestion  was  agreed  to  by 
the  counsel  with  the  understanding,  sanctioned  by  the  Court,  that  if  the 
Judge  Advocate  replied,  the  counsel  should  have  the  right  to  rejoin. 
Whether  he  would  reply  or  not,  that  officer  declined  to  say.  The  Court 
was  then  cleared,  no  one  remaining  with  them  but  the  Judge  Advocate. 
The  evidence  was,  it  is  said,  read  over,  doubtless  commented  upon  by  all, 
and  from  the  clerity  with  which  the  sentence  followed  the  reading  of  the 
defence,  even  charity  cannot  but  believe,  that  it  was  determined  upon  be- 
fore a  word  of  the  defence  was  heard.  The  defence  was  read  on  Saturday, 
the  10th  of  January,  1863,  and  the  moment  it  was  concluded,  which  was 
about  2^  o'clock,  P.  M.,  the  Judge  Advocate  said,  orally,  that  he  did  not 
propose  to  answer  it,  but  that  he  submitted  the  case  on  the  part  of  the 
government  without  remark.  The  Court  was  then  cleared,  the  Judge 
Advocate  again  remaining  with  them,  and  before  6  o'clock,  P.  M.,  the 
sentence  pronounced  that  the  accused  "  be  cashiered,"  and  "  be  forever 
disqualified  from  holding  any  office  under  the  Government  of  the  United 
States."  The  character  of  the  evidence  as  published,  from  day  to  day,  in 
the  Journals  of  the  country,  had  so  satisfied  the  public  of  Porter's  inno- 
cence, and  that  conviction  become  the  more  fi.xed  and  absolute  when  it 
was  seen  that  the  Judge  Advocate  declined  to  answer  the  defence,  thereby 
seemingly  submitting  to  a  judgment  by  default,  and  that  the  Court  de- 
cided so  immediately  after  the  defence  was  closed,  that  all  saw  it  was  im- 
possible even  that  the  evidence  could  have  been  read,  much  less  so  con- 
sidered as  is  due  to  proper  judgment,  or  the  defence  either  read  or  com- 


8 

pared  with  the  evidence,  a  measure  called  for  by  judicial  propriety  and 
necessary  to  a  just  and  enlightened  conclusion.  In  this  state  of  the  public 
opinion,  as  manifested  by  the  concurrent  voice  of  the  entire  press,  that 
spoke  at  all,  the  record  was  placed  in  the  hands  of  the  President.  Un- 
less he  had  before  been  unofficially  advised  of  it,  he  must,  when  he  read 
the  sentence,  have  been  struck  with  the  same  surprise,  with  which  its  after 
announcement  struck  the  public  ear.  Of  all  the  men  in  the  country,  he 
must  have  experienced  not  only  astonishment,  but  concern.  In  May, 
1861,  he  had  commissioned  Porter  a  Colonel  in  the  regular  army,  in 
August  of  the  same  year,  a  Brigadier  General  of  Volunteers,  and  in  July, 
'62,  and  for  distinguished  services  in  the  Peninsular  Campaign,  a  Brevet 
Brigadier  General  in  the  regular  army,  and  a  Major  General  of  Volun- 
teers. Honors  due  to  him,  in  the  view  of  the  President,  for  amongst 
others,  the  services  rendered  to  his  country  in  the  battle  of  Malvern,  a 
battle  which,  in  the  words  of  his  Chief,  McClellan,  in  a  letter  to  the 
President  written  just  afterwards,  and  near  the  battle  ground,  and  speak- 
ing, as  he  said,  "not  from  hearsay,  but  from  personal  observation,"  that 
had  eclipsed,  "in  its  result  any  other  engagement  in  the  campaign,"  and 
that  too  much  credit  could  not  "  be  given  to  General  Porter,  for  his  skill 
and  gallantry  on  the  occasion." 

The  President,  then,  could  not  but  have  paused  before  approving  such 
a  sentence,  and  asked  himself  how  it  was  possible  that  Porter,  the  idol 
of  his  men,  the  boast  of  the  array,  the  pride  of  his  chief,  and  the  recipient 
of  honors  which,  from  a  sense  of  public  justice  and  gratitude,  he  had  con- 
ferred upon  him  for  distinguished  and  valuable  services  rendered  his 
country  in  a  most  perilous  crisis,  should  all  at  once  have  been  so  recreant 
to  his  past  patriotism,  so  forgetful  of  his  then  well-earned  and  universally 
acknowledged  fame,  as  to  have  committed  acts  almost  before  the  ink  was 
dry  upon  the  parchments  containing  his  commissions,  and  whilst  the  public 
heart  was  so  gladdened  by  his  deeds  of  skill  and  daring,  as  to  demand,  in 
the  judgment  of  a  Court  composed  of  brother  officers,  that  he  "be 
cashiered,"  and  "forever  disqualified  from  holding  any  office  of  trust  or 
profit  under  the  Government  of  the  United  States." 

The  Record  was  of  great  volume.  As  published  by  Congress,  inclu- 
sive of  the  defence,  it  consists  of  298  closely  printed  octavo  pages.  The 
President  should  have  taken  time,  before  approving  of  such  a  sentence, 
the  writer  respectfully  submits,  to  have  examined  it  to  find  what  it  could 
contain  to  justify  such  a  judgment.  The  mere  sentence  itself  gave  him 
no  such  information.  It  was,  as  is  usual,  but  a  mere  naked  judgment, 
and  must,  therefore,  have  left  his  mind  in  the  condition  of  amazement  in 
which  it  could  not  but  have  placed  him.  Nor  could  he  discover  why,  if 
at  all,  his  distinguished  Judge  Advocate  should  have  sanctioned  such  a 
result.  The  Record  contained  no  reasons  of  that  officer,  summary  or  in 
detail.     It  did  contain  the  defence  of  the  accused,  and  if  he  had  read 


9 

that,  his  amazement  could  but  have  been  increased,  as  he  would  have  seen 
that  it  was,  what  all  but  the  Court,  or  to  speak,  (as  there  is  reason  to  be- 
lieve,) more  accurately,  a  bare  majority,  thought  a  complete  and  perfect 
vindication.  The  President's  time,  however,  was  perhaps  so  engrossed 
by  matters  which  he  snppos<)d  to  be  of  more  pressing  national  moment, 
(as  if  any  thing  was  more  important  than  justice,)  that  it  was  impossible 
within  the  period,  the  12th  of  January,  1863,  when  the  Record  was 
placed  in  his  hands,  and  his  approval  of  the  sentence  promulgated  on  the 
21st  of  that  month,  that  he  could  have  read  it  through  carefully,  or  at 
all,  or  examined  the  testimony,  or  tested  the  fairness  or  suilEiciency  of  the 
defence,  by  an  accurate  or  critical  review  of  the  evidence.  Nor,  as  it 
now  appears,  did  he  undertake  what,  in  the  interval  referred  to,  would 
have  been  an  impracticable  task.  For,  as  is  stated  in  the  review  of  the 
Judge  Advocate,  which  it  is  the  main  purpose  of  the  writer  to  answer,  on 
the  13th  day  of  January,  1863,  the  day  after  the  Record  was  transmitted 
to  him,  the  President  issued  "  written  instructions"  to  that  officer,  "to 
revise  the  proceedings  of  the  Court  Martial  in  the  case  of  Major  General 
Fitz  John  Porter,  and  to  report  fully  upon  any  legal  questions  that 
may  have  arisen  in  them,  and  upon  the  bearing  of  the  testimony  in  refer- 
ence to  the  charges  and  specifications  exhibited  against  the  accused,  and 
upon  which  he  was  tried."  These  instructions  produced  an  elaborate 
paper,  dated  the  19th  of  the  same  month.  The  Record  between  that 
day  and  the  date  of  the  instructions,  and  the  prior  13th,  must  have  been 
continuously  in  the  exclusive  possession  of  the  Judge  Advocate.  It  is 
probable  that  the  Record,  with  the  review,  was  not  returned  to  the 
President  before  the  20th,  but,  however  that  may  be,  it  could  not  have 
been  returned  at  the  earliest,  sooner  than  the  day  of  the  date  of  the 
review,  the  19th,  and  on  the  21st  the  sentence  was  approved.  It  is  even, 
therefore,  the  more  obvious  than  it  would  otherwise  be,  that  in  this  short 
period  of  two  days,  proper  examination  and  comparison  of  the  proofs, 
and  the  bringing  to  their  test  Porter's  defence,  and  subjecting  to  the  same 
test  the  Judge  Advocate's  review,  (each  vital  to  a  proi)cr  consideration 
and  just  conclusion,)  could  not  have  been  made  by  the  President.  The 
inference,  therefore,  is  irresistible,  that  in  this  instance,  at  least,  (with 
motives  which  his  established  character  prevents  our  questioning  how 
much  we  may  lament  its  weakness  and  its  injustice,)  he  has  rested  his 
judgment,  though  severely  calculated  to  dishonor  a  well  tried  public  ser- 
vant whom  he  had  but  recently  before,  over  and  over  again,  honored  by 
acts  of  distinguished  official  favor  upon  the  argument  of  his  Judge  Ad- 
vocate alone,  without  collating  it  even  with  the  portions  of  the  evidence 
quoted  by  that  officer,  much  less  with  all  the  evidence  so  material  to 
understand  properly  and  justly  the  portions  quoted  or  even  stopping  to 
discover  what  is  thought  to  be  quite  apparent,  the  depth  of  the  prejudice 
which  that  officer  entertained  towards  the  accused.     Reposing,  however, 


10 

confidence  in  the  Jnd<re  Advocate,  he  has,  yielding  to  the  pressure  of 
other  engagements,  submitted  his  own  judgment  to  the  keeping  of  that 
officer.  And  he  did  this  so  entirely,  tliat  it  does  not  seem  to  have  oc- 
curred to  him,  that  it  was  in  any  respect  due  to  Porter  that  he  should 
have  an  opportunity,  through  his  counsel,  of  replying  to  the  argument  of 
that  officer.  What  occurred  in  the  Court  on  that  point  could  not,  there- 
fore, have  been  made  known  to  him.  He  could  not  have  been  told,  that 
in  the  view  of  the  Court,  if  a  reply  was  made  to  the  defence,  it  was  due 
to  the  accused,  and  his  privilege,  that  he  should  have  the  right  to  rejoin. 
But  it  is  most  singular,  and  not  to  be  accounted  for,  except  that  his  other 
harassing  and  important  engagements  deadened  his  sense  of  justice,  that 
a  right  so  justly  due  to  Porter,  and  so  necessary  to  truth,  had  not  sug- 
gested itself  to  his  honest  mind,  and  more  especially,  as  his  long  expe- 
rience as  a  lawyer  must  have  taught  him  its  importance. 

But  so  it  was.  The  accused  then,  as  far  as  the  President's  action  is 
concerned,  has  had  his  case  decided  on  the  argument  of  the  Judge  Advo- 
cate's review,  not  only  without  having  had  accorded  to  him  the  privilege 
of  reply,  but  without  the  President's  having  taken  time  to  read  all  the 
evidence,  if  he  read  any  part  of  it,  or  to  read  the  defence,  or  to  test  that 
or  the  review  by  comparing  either  with  the  whole  evidence  or  with  any 
part  of  it.  The  rule  of  military  law  as  laid  down  by  Sir  Charles  J. 
Napier,  is  now  well  settled,  that  no  matter  how  many  addresses  are  made 
by  either  party,  "the  Prisoner  has  the  right  to  speak  last."  Bennet, 
pp.  128,  124.  In  this  instance,  the  rule  vi^as  grossly  violated.  The  last 
speech  was  made  by  the  Judge  Advocate.  Porter  was  not  only  not  per- 
mitted to  reply,  but  the  existence  even  of  the  review  was  apparently  con- 
cealed from  him,  certainly  was  not  known  by  him  until  in  common  with  all, 
after  the  sentence  was  announced  approved,  and  was  circulated  by  the  War 
Department.  To  any  mind  accustomed  to  the  investigation  of  truth  and 
the  ascertainment  of  facts  through  human  testimony,  such  means  are 
known  not  only  to  be  important,  but  essential.  No  conclusion  arrived  at 
in  any  other  way,  can  be  relied  upon.  No  judgment,  otherwise  formed, 
is  entitled  to  the  least  respect.  In  any  instance  it  is  as  likely  to  be  wrong 
as  right,  and  more  likely  to  be  wrong,  in  a  case  where  it  afifocts  injuriously 
the  character  of  a  citizen  whose  antecedents  had  challenged  not  only  the 
good  opinion  of  those  who  knew  him,  but  their  admiration,  and  whose 
claim  to  public  esteem  rests  on  admitted  valuable  and  perilous  public 
service.  In  such  a  case,  mental  imbecility  or  jirejudice,  so  deep  and  dark 
as  wholly  to  cloud  reason,  must  be  supposed  to  be  the  foundation  of  the  error. 
And  with  an  evident  consciousness  that  the  observing  and  correct  mind 
of  the  country  would  be  astounded  at  the,result,  with  a  zeal  and  industry 
worthy  of  a  better  cause,  the  same  resort,  which  so  evidently  misled  the 
President,  has  been  adopted  to  quiet  the  certainly  anticipated  public  con- 
demnation.    AVhilst  tlie  Senate  refused  to  call  for  the  Record  in  order  to 


11 

its  publication,  (because  of  tbeir  having  been  deceived  through  the  degra- 
ding artifice  of  Roberts  and  Smith,  into  the  belief  that  it  had  all  been 
published,)  that  the  people  might  see  the  whole  case,  the  review  of  the 
Judge  Advocate  was  at  once  published  at  the  expense  of  the  War  De- 
partment, and  scattered  broad-cast  over  the  land.  Other  things,  too, 
have  happened,  suggestive  of  most  uni)leasant  reflections,  reflections  cast- 
ing more  tlian  a  doubt  on  the  mere  abstract  correctness  of  the  Court's  sen- 
tence. Almost  simultaneously  with  its  puldication,  three  of  the  members 
of  the  Court  were  made  Major  Generals,  all  certainly  most  estimable  gen- 
tlemen, and  possibly  competent  soldiers,  but  with  no  claims  to  such  pro- 
motion, (one  of  them.  Major  General  Prentiss,  the  only  one  of  the  three, 
who  it  is  confidently  believed,  did  not  concur  in  the  sentence,  has  recently 
proved  himself  worthy  of  his  rank,  by  his  skillful  defence  of  Helena,  Ar- 
kansas.) But  the  public  in  vain,  at  the  time,  endeavored  to  recollect  any 
fact  as  to  either  calling  for  such  an  honor,  and  have  not  been  more  suc- 
cessful since,  except  and  very  recently  as  to  Prentiss.  And  they  have 
asked,  and  still  ask,  if  their  distinguished  services  and  the  good  of  the 
country  required  their  elevation  to  such  high  rank,  why  was  it  not  con- 
ferred before  ?  and  why,  why,  above  all,  was  it  the  immediate  sequence 
of  the  sentence  against  Porter  ?  Who  can  answer  satisfactorily  either 
question  ?  None  certainly  has  as  yet  come  from  any  quarter.  The  Pre- 
sident of  the  Court,  Major  General  Hunter,  was  also  immediately  re- 
turned to  a  command  from  which  he  had  been  shortly  before  removed  for 
acts  of  alleged  mistaken  policy,  or  excess  of  authority,  and  from  which  it 
has  been  found  necessary  to  remove  him  a  second  time. 

Of  the  three  witnesses.  Major  General  Pope  was  continued  in  an  im- 
portant command,  notwithstanding  his  sad  failure  in  his  Virginia  cam- 
paign. Brigadier  General  Roberts  was  assigned  to  a  more  im[)ortant 
one  than  he  had  ever  held  bfefore,  or  to  which  any  competent  officer  who 
had  known  him  believed  him  equal — nor  in  his  career  since  has  he  done 
anything  to  attract  attention,  except  in  the  way  in  which  his  former  chief 
signalized  the  commencement  of  his  Virginia  career,  the  issuing  of  pro- 
clamations as  uncalled  for  as  they  were  ridiculous  and  futile.  It  has  also 
been  found  necessary  in  his  case,  to  take  it  from  him,  and  he  is  now  once 
more  on  Pope's  staff. 

Wliat  disposition  has  been  made  of  Lieutenant  Colonel  Smith,  is  not 
known,  and  probably  no  one  cares.  He  perhaps  continues  to  be  one  of 
the  military  family  of  Pope,  ready  whenever  his  exigencies  may  require 
it,  to  display  for  his  benefit,  the  extraordinary  faculty  which  he  claims  to 
possess — the  reading  of  souls  at  first  sight.  The  faculty  of  receiving,  to 
use  his  own  word.s,  an  "impression,"  although  unable  to  analyze  it  from  a 
few  moment's  intercourse  with  another — the  power  to  obtain  "one  of  those 
convictions  that  a  man  has  a  few  times,  perhaps,  in  his  life,  (he  is  modest 
enough  not  to  claim  to  have  it  always  at  his  command,)  as  to  the  character 


12 

and  purposes  of  a  person  who  he  sees  for  the  first  time,"  and  although 
"  no  man  can  express  altogether  how  such  an  impression  is  gained  from 
looks  and  manner,  but  it  is  clear." 

Under  all  these  circumstances,  with  every  ingenuous  mind,  a  sentence 
announced  as  this  was,  would  be  without  the  slightest  authority,  and  no 
reason  could  exist  for  subjecting  it  to  serious  examination.  The  fact, 
however,  that  the  present  one,  is  maintained  and  justified  by  Mr.  Judge 
Advocate  General  Holt,  makes  it  in  a  measure  advisable.  The  well 
established  reputation  of  that  officer,  his  perfect  loyalty,  his  eminent  abil- 
ity, and  the  somewhat  plausible  character  of  the  review,  considered  by 
itself,  seems  to  require  that  that  review  be  answered.  For,  however,  as 
the  writer  has  good  reasons  for  believing,  this  is  thought  to  be  unnecessary 
by  those  who  have  made  themselves  acquainted  with  all  the  evidence, 
there  must  be  a  numerous  class  of  citizens,  who  not  having  done  so,  may 
have  been  led  estray  by  it. 

The  ingenuity  of  the  Judge  Advocate  and  his  deservedly  high  reputa- 
tion, gives  to  it  an  authority  to  which,  it  will  be  seen  it  is  not  entitled,  when 
it  conies  to  be  examined.  A  reader  uninformed  as  to  the  evidence,  will 
be  unable  to  detect  his  sophistry  or  discover  his  prejudice,  a  prejudice 
doubtless  unknown  to  himself,  but  not  the  less  strong,  and  perhaps  stronger 
on  that  account.  Under  this  impression,  it  is  the  purpose  of  the  writer 
to  subject  the  review  to  the  ordeal  of  reason  and  of  truth.  This  he  feels 
to  be  not  less  due  to  Major  General  Porter,  than  to  the  good  of  the  ser- 
vice, and  the  benefit  of  the  country.  An  officer,  whose  deeds  on  so  many 
battle  fields  in  the  present  war  have  so  enhanced  the  nation's  fame,  filling 
with  gratitude  the  very  "  pulse  and  veins  of  the  people,"  whose  patriotism 
from  the  first,  was  not  only  never  before  called  into  doubt,  but  admitted, 
and  signally  honored  and  rewarded,  should  not  be  permitted  to  suffer  in 
the  estimation  of  one  honest  citizen  from  a  paper  whatever  of  high  char- 
acter may  belong  to  its  author. 

There  are  further  considerations  which  in  the  judgment  of  the  writer 
call  for  an  answer.  Before  the  sentence  was  made  public  and  since.  Por- 
ter has  been  assailed,  with  a  bitterness  implying  malignity  as  well  as 
ignorance,  and  by  a  few  persons  filling  high  official  })hices,  and  whose 
claim  to  capacity  and  confidence,  (however  ridiculous  these  are  to  those 
who  know  them,)  may  have  misled  a  part  of  the  public.  Amongst  those 
are  some  who  pretend  to  be  Military  Critics.  Possibly  themselves  led 
estray  by  their  own  turgid  conceit,  they  may  believe  that  they  possess  this 
highest  of  intellectual  powers.  And  where  they  are  not  self-deluded, 
there  blatant  patriotism,  (ever  the  art  of  the  demagogue,)  may  possibly 
mislead  the  unsuspecting.  These  last  are  slow  to  believe  that  such  ])re- 
tenders  to  knowledge  and  virtue  can  design  to  delude.  Tlieir  assumed 
wisdom  for  a  time  is  taken  at  its  nominal,  not  its  real  worth — their  judg- 
ments, valued  at  their  author's  estimate,  and  not  at  their  actual  value'. 


13 

And  for  a  period,  miraculous  even  as  it  may  appear,  they  are  supposed 
to  be  infallible  judjjes  of  military  subjects,  to  be  men  whom  nature  has 
made  cliosen  objects  of  her  favor,  ini))artiiig  to  them  the  faculty  of  master- 
ing military  science  without  either  study  or  practice,  although  in  all  other 
respects  they  are  seen  to  be  placed  low  in  the  scale  of  human  capacity. 
It  is  consequently  possible  that  to  some  extent  these  pretenders  may  have 
given  to  the  sentence  of  the  Court  some  little  sanction.  This  furnishes 
a  further  reason  for  the  vindication  of  Porter,  and  to  these  several  reasons, 
perhaps,  is  to  be  added  yet  another.  It  is  not  to  be  disguised  that  in  the 
conduct  of  this  sad  war  different  views  of  policy  have  been  entertained  in 
the  army  as  well  as  in  Congress.  The  resolution  adopted  in  1861,  with 
so  much  unanimity  by  that  body,  declaring  what  the  object  of  the  Govern- 
ment in  the  war  was,  was  approved  with  almost  the  same  unanimity  by 
the  army,  men  as  well  as  officers,  and  by  the  people.  That  policy,  then 
so  generally  approved,  has  been  since  departed  from,  whether  wisely  or 
not  it  is  not  the  writer's  present  design  to  enquire.  The  chief  authors  of 
the  change  have  from  the  first  charged  almost  every  military  disaster  and 
the  failure  of  a  complete  triumph  over  the  rebellion  to  the  want  of  con- 
currence in  the  wisdom  and  projiriety  of  the  change  in  a  portion  of  our 
military  leaders,  and  have  literally  clamored  for  their  removal.  To  this 
class  Porter  was  supposed  to  belong.  Whether  he  did  or  not  the  writer 
has  no  certain  knowledge,  though  he  thinks  it  probable,  as  by  nature 
and  intelligent  patriotism  he  is  conservative  and  national.  But  to 
suspect  him  of  not  changing  his  individual  opinion  as  Congress  changed 
its  own,  in  the  estimate  of  the  men  alluded  to,  was  fault  enough.  In  their 
view  every  officer  whose  opinions  were  supposed  to  be  the  same  on  cer- 
tain subjects  as  those  of  McClellan  and  Porter,  and  who  has  failed  to 
abandon  them  at  party  bidding,  has  been  continuously  assailed  with  the 
same  bitterness.  Even  the  present  Commander-in-Chief  is  constantly 
subjected  to  its  fury.  Assaults  are  made  upon  him  from  day  to  day, 
and  with  ever  increasing  violence.  His  removal  is  demanded  under  the 
pretext  of  the  public  good,  but  really  to  gratify  party  purposes.  His 
capacity  is  denied — his  [/ntriotism  questioned,  and  the  Presidential  ear 
literally  dinned  with  the  ignorant  and  false  clamor.  Thus  far,  however,  it 
has  been  without  avail.  His  having  abandoned  his  distant  home  on  the 
Pacific,  where  every  comfort  surrounded  him,  and  no  peril  threatened  or 
could  come,  purely  from  a  sense  of  patriotic  duty  to  serve  the  country  in 
the  present  crisis,  and  his  having  subsequently  on  the  field  and  in  the  closet 
giving  his  days  and  nights  to  her  assistance,  all  avail  nothing.  These 
voracious  hawkers  after  objects  of  party  sacrifice  seem  literally  to  gloat, 
and  with  no  concealed  delight,  over  any  officer,  (the  higher  he  stands  in' 
the  public  esteem  the  greater  the  pleasure,)  who  they  think  they  can  make 
a  victim  to  their  thirst  for  victims  to  promote  party  success. 


14 

Porter,  too,  was  known  to  be  a  personal  friend  and  admirer  of  Mc- 
Clellan.  He  had  every  means  of  judging  of  McClellau's  capacity,  of 
witnessing  liis  love  of  country — his  constant  efforts  to  serve  her,  and  his 
military  skill  and  genius,  and  the  result  was  that  he  highly  appreciated 
him  as  a  citizen  and  an  officer.  And  this,  in  the  view  of  the  men  referred 
to,  seemed  to  be  almost  if  not  fully  as  great  an  offence  as  treason.  .  He 
became  therefore  at  once  an  object  of  vituperation,  and  no  efforts  were 
spared  to  shake  the  confidence  that  the  President  had  so  cons])icuously 
placed  in  him.  When  Pope's  disgraceful  failure  was  evidently  stirring 
the  public  mind  to  the  folly  and  injustice  of  taking  from  McCIellan 
the  command  of  the  army  of  the  Potomac,  and  arresting  his  plan  of  further 
campaign,  it  became  apparently  vital  to  party  success  that  some  safety 
valve  should  be  found  for  the  harmless  escape  of  the  impending  in- 
dignation. And  it  was  thought  that  it  would  be  found  by  ascribing 
that  failure  to  treasonable  conduct  on  the  part  of  Porter,  and  this 
was  done.  A  willing  instrument  for  the  purpose,  Pope  was  supposed 
to  be,  (it  is  but  justice  to  that  officer  to  say,  that  when  he  discovered 
it,  he  declined  the  degrading  task.)  The  charges  at  first  were  said  to 
be  his, — he  promptly  disavowed  them.  That  occurring,  an  informer 
was  found  in  Roberts.  The  result  is  the  dismissal  of  Porter  from 
the  service,  whose  fame  he  had  so  signally  enhanced,  and  its  being 
hailed  with  delight  by  the  class  referred  to.  Had  Porter  pursued  a 
different  course ;  had  he,  with  the  readiness  of  a  mere  party  politi- 
cian, regardless  of  his  former  opinions,  adopted  with  instant  and 
proclaimed  zeal,  those  which  Congress,  forgetting  their  former  opinions, 
afterwards  adopted ;  and  especially,  had  he,  oblivious  of  the  teach- 
ings of  his  life,  of  his  good  name  and  honor,  and  of  the  opinion  of 
the  enlightened  and  patriotic,  proved  himself  an  inordinate  braggart, 
boasted  of  his  own  merits,  detracted  from  MeClellan's,  and  stated  that 
he,  commanding  the  army,  Richmond  would  long  since  have  been  ours — 
he,  too,  would  doubtless  now  not  only  be  in  the  service,  but  be  the  favorite 
and  boast  of  the  very  men  who  have  denounced  him,  and  proba])ly  have 
been  placed  at  its  head.  The  rank  ignorance  of  such  men,  their  lofty 
pretensions,  and  supercilious  arrogance,  from  its  very  extravagance,  is  in 
a  measure  captivating.  Sublimity  is  at  times  found  in  the  excess  of 
the  ridiculous.      "An  avenue  of  colossal  toads  might  become   sublime." 

With  these  remarks,  pertinent  as  the  writer  thinks  to  his  purpose,  he 
proceeds  to  answerthe  Judge  Advocate,  and  with  all  the  brevity  consistent 
with  necessary  fullness  and  perspicuity. 

Evidently  sensible  of  the  insufficiency  of  the  evidence  considered  by 
itself,  and  perhaps  more  sensible,  that  the  President  would  so  view  it,  to 
effect  the  accused  in  the  matters  charged  against  him,  the  Judge  Advocate 
devotes  four  pages  of  the  thirty  of  his  review  to  discover  what  had  been 
the  ANIMUS  of  the  accused.     To  quote  his  language,  "as  the  animus  of 


15 

the  accused  towards  his  Commanding  General  in  pursuing  the  line  of  con- 
duct alleged  against  him,  must  largely  affect  the  question  of  his  criminality, 
and  may  furnish  a  safe  and  valual)lc  light  for  your  guidance,  (he  is  ad- 
dressing the  President,  not  the  Court,)  "  in  determining  ])oints,  otherwise 
left  doubtful  by  the  evidence,  it  is  proper  that  it  should  be  ascertained 
before  entering  at  large  upon  the  review  of  the  case,  which  you  have  in- 
structed me  to  make  " 

What  an  exordium  to  a  paper  designed  to  induce  a  sanction  of  a  judg- 
ment, dishonoring  an  officer  whose  life  had  been  passed  in  faithfully 
discharging  his  duty  to  his  country — whose  loyalty  and  efficiency  after 
the  rebellion  broke  out,  had  been  manifested  in  part  under  the  orders  of 
the  reviewer  himself,  when  he  was  at  the  head  of  the  War  Department,  and 
to  his  entire  satisfaction,  and  conspicuously  displayed  in  the  midst  of 
great  difficulties  and  peril,  and  whose  conduct  in  the  many  battles  in  which 
he  had  been  engaged,  had  excited  the  public  admiration,  and  received 
the  signal  approval  of  the  President. 

The  evidence  alone,  says  the  reviewer,  is  not  sufficient  to  convict  the 
accused,  or  to  use  his  own  words,  his  guilt  is  "  left  doubtful  by  the  evi- 
dence.''^ 

His  animus  however,  "may  furnish  a  safe  and  reliable  light,"  by  which 
to  discover  his  guilt.  It  may  enable  the  President  to  determine  what  is 
otherwise  doubtful.  You  must  in  this  way  supply,  he  tells  the  President, 
the  defficieucy  in  the  proof.  You  must  probe  the  mind  of  the  accused. 
That  may  remove  the  darkness — furnish  the  light — explain  the  doubt. 
And  to  this,  and  with  an  earnestness  that  evinces  a  burning  desire  of  suc- 
cess, he  addresses  himself  with  poetic  license — with  a  beautiful,  though 
somewhat  extravagant  fancy,  which  however  it  may  please  the  ear,  in  the 
judgment  of  the  wise,  is  a  very  unsafe  guide  to  truth. 

Not  content  with  the  asserted  tendency  of  the  telegrams,  which  he  had 
offered  in  evidence  to  establish  the  somuch  wished  for  aximus,  "  Lieut. 
Colonel  Thomas  C.  H.  Smith,  an  Aid-de-Camp  in  the  staff  of  General 
Pope,"  is  resorted  to  for  the  charitable  purpose. 

His  power  to  see  into  the  very  hearts  of  men  at  a  single  and  first  inter- 
view of  a  few  minutes  duration  only,  preceded  by  no  prior  acquaintance 
whatever,  is,  and  with  a  confidence  which  under  other  circumstances, 
would  by  a  plain  judgment  be  considered  simply  ridiculous,  seriously 
relied  upon.  The  defence  had  characterized  what  this  witness  had  said 
in  regard  to  it,  (and  as  the  impartial  and  intelligent  reader  will  think 
justly,)  as  "ravings,  wild  fantacies,  rubbish,  which  should  not  have  been 
suffered  to  encumber  the  Record." 

How  unjust  this  is,  says  the  Judge  Advocate.  "The  witness,  (he  says) 
endeavored  to  lay  bare  the  foundations  on  which  his  belief  of  the  accused's 
meditated  treachery  rested."  He  said  that  the  manner  of  the  accused, 
"  was  sneering  throughout,  whenever  allusion  was  made  to  matters  con- 


16 

nected  with  General  Pope,  and  quoting  Lis  words,  "his  look  was  that  of 
a  man  having  a  crime  on  his  mind."  But  the  Judge  Advocate  admits, 
that  the  task,  (discovering  with  the  only  opportunity  which  he  had,  the 
state  of  Porter's  mind,)  "  was  a  difficult  one,  and  may  not  have  been  en- 
tirely successful.'^ 

In  other  words,  he  admits,  that  in  this.  Smith  may  have  failed,  and 
done  the  accused  injustice.  He  adds  that  "it  was  physically  impossible 
for  the  witness  to  reproduce  the  manner,  the  tone  of  voice,  and  the  ex- 
pression of  the  eye,  and  the  play  of  the  features,  which  may  have  so 
much  influenced  his  judgment.  Yet  these  often  afford  a  language  more 
to  be  relied  on  than  that  of  the  lips.  He  could  not  hold  up  before  the 
Court,  for  its  inspection  and  appreciation,  the  sneer  of  which  he  spoke. 
And  yet  we  know  that  a  sneer  is  as  palpable  to  the  mental,  as  a  smile  is 
to  the  natural  vision.  It  is  a  life-long  experience  that  souls  read  each 
other,  and  that  there  are  inter-coramunings  of  spirits  through  instrumen- 
talities which,  while  defying  all  human  analysis,  nevertheless  completely 
command  the  homage  of  human  faith.  Great  crimes,  too,  like  great 
virtues,  often  reveal  themselves  to  a  close  observer  of  character  and  con- 
duct, as  unmistakably  as  a  flower  garden  announces  its  presence  by  the 
odors  it  breathes  upon  the  air."  From  these  quotations,  the  reader  will 
see  how  vital,  in  the  judgment  of  the  Judge  Advocate,  to  the  success  of 
his  palpable  purpose  to  have  the  sentence  approved,  it  was  that  the 
alleged  criminal  animus  of  Porter  should  be  made  out.  Nor  can  he 
also  fail  to  discover  that,  even  with  the  reviewer's  evident  desire  to  dis- 
cover it — his  belief  in  spiritual  "inter-communings" — his  tendency  to  be 
led  into  error  by  his  own  imagination — his  doctrine  that  the  face  often 
speaks  the  mind  as  unmistakably  as  the  presence  of  a  flower  garden  is 
announced  "  by  the  odors  it  breathes  upon  the  air" — he  admits  that  in 
this  instance  the  professor  of  the  art,  his  lauded  Lieutenant  Colonel, 
"may  not  have  been  entirely  successful." 

He  concedes  that  he  may  have  misconceived  "the  look;"  although,  if 
the  treachery  "  was  then  contemplated,  it  must  be  admitted  as.  altogether 
probable,  that  the  shadow  of  such  a  crime  struggling  into  being,  would 
have  made  itself  manifest." 

It  is  evident  that  the  Judge  Advocate  is  not  satisfied  with  the  result  of 
his  search,  so  far,  for  the  much  wished  criminal  animus  of  the  accused. 
A  philosophic  poet  has  said  that  there  are  occasions  when, — 

"Thought  meets  thought  ere  from  the  lips  it  part, 
Aud  each  warm  wish  springs  mutual  from  the  heart." 

But  to  this,  common  feelings  and  a  reciprocal  nature  are  necessary. 
Who  that  knows  Porter,  and  has  seen  Lieut.   Colonel  Smith,  could 
for   a   moment   believe   that  such  was   their  relative   condition.      Well 
might  the  reviewer  then  fear  that  his  effort  to  establish,  by  such  proof, 


17 

the  intended  treacliery  of  tlie  accused,  had  failed.  Well  niijrht  he  be 
sensilile  that  such  a  task  was  even  beyond  his  great  powers,  displayed 
either  in  imagination,  spiritualism  or  argument.  All  exerted  together 
for  such  an  end,  could  not  lift  folly  to  respectability — make  absurdity 
reason — a  ridiculous  pretence,  plausible,  or  for  a  moment  with  a  con- 
siderate, honest  and  unprejudiced  judgment,  injuriously  affect  a  soldier, 
who,  with  fearless  intrepidity  and  consummate  and  applauded  skill,  had 
so  faithfully  served  his  country,  at  a  period  when  so  many  had  proved 
faithless.  In  addition  to  the  strong  impediment  which  was  thus  inter- 
posed to  the  success  of  the  Judge  Advocate's  purpose,  there  was  an- 
other. The  witness  himself,  in  addition  to  the  nonsense  already  referred 
to,  proved  that  he  was  not  in  this  particular,  at  least,  to  be  relied  upon. 
He  was  so  bewildered  with  his  own  conceited  flummery,  that  if  he  is  to 
be  believed,  it  was  near  making  him  the  greatest  of  criminals.  He  told 
the  Court  what  the  Judge  Advocate  omits  to  inform  the  President,  that 
on  his  return  to  his  chief,  after  his  ten  minutes  interview  with  Porter,  he 
stated  to  the  former,  "I  was  so  certain  that  Fitz  John  Porter  was  a 
traitor,  that  I  would  shoot  him  that  niglu,  so  far  as  any  crime  before  God 
was  concerned,  if  the  law  would  allow  me  to  do  it."  What  an  avowal, 
almost  a  boast.  That  the  laws  of  man  alone  restrained  him,  not  the  laws 
of  God  from  committing  murder.  And  yet,  this  witness  with  this  horrible 
avowal  fresh  in  his  mind,  the  Judge  Advocate  tells  the  President  is, 
"  a  man  of  fine  intelligence,"  "that  his  conscientiousness  rendered  him 
careful,  and  guarded  in  his  statements,  and  that  he  evinced  a  depth  and 
solemnity  of  conviction,  rarely  paralleled  in  judicial  proceedings." 

What  mind,  but  one  so  blinded  by  prejudice,  that  its  light  was  for  a 
time  extinguished,  would  not,  on  the  contrary,  at  once  and  with  indigna- 
tion, have  rejected  the  testimony  of  such  a  witness,  even  if  its  transparent 
doltishness  was  less  conspicuous.  But  prejudice,  jaundices  the  finest  as 
well  as  the  weakest  intellect,  and  makes  everything  appear  of  its  ovva 
color.  To  immaterial  facts  and  idle  fancies,  it  attaches,  substance  and 
reality.  It  affects  the  very  warp  and  woof  of  the  mind,  engenders  sus- 
picion, and  gives  to  idle  and  trivial  circumstances,  the  weight  of  un- 
answerable proofs.  He  who  read  through  all  hearts,  and  knew  and  dis- 
cribed  man  in  his  loftiest  exhibition  of  virtue — his  grandest  of  crime,  and 
his  lowest  of  weaknesses,  says  jealousy,  (and  in  this  it  resembles  prejudice,) 
is  one  of  his  frailties.  "Trifles  light  as  air,  are  to  the  jealous,  confirma- 
tion strong  as  proofs  of  holy  writ,"  and  "shapes  faults  that  arc  not." 

These  observations  are  not  made  in  any  unkind  spirit  towards  the  Judge 
Advocate.  His  talents  are  admired,  and  his  public  services  and  patriotic 
virtue  in  this  epoch  of  our  history,  have  given  him  an  honored  place  in 
the  grateful  heart  of  the  nation.  But  this  renders  it  the  more  important, 
when  his  great  authority  is  used  to  justify  the  sentence  against  Porter,  a 
soldier  to  whom  the  country  is  yet  more  indebted,  that  that  authority 
2 


18 

should  be  examined,  that  it  may  be  taken  only  at  its  intrinsic,  and  not  at 
its  adventitious  worth.  If  it  has  been  depreciated  by  what  has  been 
already  said,  such  depreciation  cannot  but  impair  it  throughout,  and  cause 
the  reader  to  receive  with  more  than  doubt  all  that  it  urges  against  Porter. 

'Notwithstanding  his  evident  foregone  conclusion  of  the  guilt  of  Porter, 
and  his  belief'that  to  establish  it  to  the  satisfaction  of  the  dullest  and  least 
charitable,  it  was  most  important  to  make  good  the  hypothesis  of  his 
antecedent  meditated  treachery,  and  not  satisfied,  that  what  were  properly 
characterized  as  the  "ravings  and  wild  fantacies"  of  Lieut.  Colonel 
Smith,  would  have  that  effect,  he  seeks  to  accomplish  the  end  by  resorting 
to  certain  telegrams,  sent  from  time  to  time,  daring  the  campaign,  by 
Porter  to  General  Burnside.  Some  of  these  are  in  part  given,  and  as  the 
reader  will  see  most  unjustly  applied.  Porter  reported  to  Pope  in  writ- 
ing, on  26th,  and  in  person  on  the  morning  of  27th  of  August,  '62.  He 
had  left  Burnside,  (under  whose  command  he  had  been  for  some  days 
before,)  and  he  was  requested  by  that  officer  to  inform  him  from  time  to 
time  by  telegraph,  how  matters  progressed.  Tliis  request  was  virtually 
an  order,  and  so  considered,  and  acted  upon  by  both  officers.  General 
Burnside  said  that  he  regarded  sending  the  despatches  to  him  by  Porter, 
"  as  an  official  act  done  by  him  in  the  performance  of  his  duty,"  under 
his  "direction."  But  this,  says  the  Judge  Advocate,  (p.  180,)  "so  far 
as  the  purpose  for  which  they  were  offered  by  the  Government  is  con- 
cerned, it  is  wholly  immaterial  under  whose  prompting,  or  for  xcliat  end 
they  were  written." 

Not  for  what  end  ?  However  important  to  the  public  good  the  in- 
formation they  gave  was — however  patriotic  the  motive,  the  sending  of 
the  despatches,  was  immaterial  in  an  inquiry  as  to  the  guilty  or  inno- 
cent, the  animus  of  the  accused  in  the  sending  of  them.  They  were  offered 
bythe  Government  to  prove  that  Porter,  at  the  time,  "  entertained  feelings 
of  contempt  and  hostility  towards  the  army  of  Virginia  at  its  commander," 
and,  "  it  matters  not  whether  in  a  private  and  confidential,  or  in  an  official 
communication." 

So  reasons  the  Judge  Advocate.  Besides  its  shallowness,  which  of 
itself  condemns  it,  he  does  not  inform  the  President  that  they  were 
sent  under  orders,  or  of  what  was  proved  by  Burnside  .and  others, 
though  both  facts,  were  most  important  to  enable  the  President  to  pass 
understandingly  upon  the  case,  that  every  fact  communicated  hy  the 
despatches  loas  true.  Burnside  was  asked  bythe  Court:  "  From  what 
you  know  now,  have  you  any  reason  to  believe  that  the  information  given 
by  General  Porter  in  these  telegrams,  (meaning  all  that  were  sent  to  him,) 
as  to  the  actual  state  of  the  army  under  General  Pope,  was  not  correct  ?" 
and  he  answered:  "/  am  myself  quite  satisfied  that  it  loas  correct.''^ 
"But  that  opinion  is  merely  one  based  upon  the  information  I  then  re- 
ceived, and  what  I  have  since  heard."     (P.  184.)     And  the  Government 


19 

offered  no  evidence  to  prove  that  they  were  not  correct  to  th'c  letter. 
Nor  does  the  Judge  Advocate  give  the  President,  nor  alhido  to  it  in  any 
part  of  his  review,  the  benefit  of  General  Burnside's  opinion,  formed  on 
these  despatches,  as  well  as  on  his  whole  intercourse  with  and  knowledge 
of  Porter,  that  from  the  first,  and  to  the  period  when  he  testified,  he, 
Burnside,  was  satisfied  that  he  would  prove,  and  had  proved,  true  to 
his  duty,  to  Pope  and  the  country.  This  is,  too,  the  more  surprising,  as 
his  very  first  question  to  Burnside  discovers  that  he  considered  his  opinion 
important.  Could  he  have  obtained  the  one  he  desired,  would  he  not 
have  used  it,  and  even  with  more  confidence  than  he  uses  the  supposed 
"inter-comraunings  of  spirits,"  to  show  that  Porter  meditated  treachery  ? 
His  question  was  :  "Will  you  state  whether  at  the  time  these  despatches 
were  received  from  General  Porter,  (say  between  26th  and  29th  of  August 
inclusive,)  any  of  them  excited  in  your  mind  the  apprehension  that 
General  Porter  might  not  be  inclined  to  do  his  whole  duty  as  a  subordi- 
nate under  General  Pope?"  The  answer  was:  "I  received  no  such 
IMPRESSION  AS  THAT  FROM  THE  DESPATCHES.  /  saw  in  General  Por- 
ter^s  despatches  exactly  lohat  I  heard  expressed  by  a  large  portion  of 
the  officers  with  whom.  I  happened  to  be  in  communication  at  the  time, 
a  very  great  lack  of  confidence  in  the  management  of  the  campaign. 
It  was  not  confined  to  General  Porter.  I  saw  in  his  despatches,  and  I 
told  General  Porter  himself  so,  what  may  have  been  indiscreet  language  ; 

BUT  NOTHING  THAT  LED  ME,  FOR  ONE  MOMENT,  TO  PEEL  THAT  HE  WOULD 
NOT   DO   HIS   WHOLE   DUTY,"      (P.    181.) 

This  evidence  (could  it  have  been  by  design  ?)  was  not  only  not  given 
to  the  President,  but  its  existence  was  not  even  intimated,  although  the 
Judge  Advocate  was  instructed  by  the  President  "to  report  fully  upon 
the  bearing  of  the  testimony  (the  whole,  of  course,)  in  reference  to  the 
charges  and  specifications,"  upon  which  Porter  was  tried.  Neither  was 
the  President  informed  that,  in  answering  the  question  by  the  Court,  (the 
one  already  quoted,)  which  was  intended,  if  })ossible,  to  find  out  whether 
Porter  went  under  the  command  of  General  Pope  with  unfavorable  im- 
pressions towards  Hiat  otlJcer,  or  whether  such  "impressions  were  gained 
after  he  was  on  the  groiuid,"  the  same  witness  testified  :  "  He  moved 
his  troops  off  rapidly,  and  marched  them  at  night,  and  everything 
within   my  limits  appeared  to  me  to  indicate  that  he  was  determined 

TO  GET  HIS  TROOPS  UP  THERE  AS  RAPIDLY  AS  POSSIBLE.  I  SAW  NOTH- 
ING TO  INDICATE  THE  REVERSE."  (P.  182.)  Nor  was  the  President 
advised  that  Burnside  had  testified,  that  in  departing  from  an  order 
of  General  McClellan  as  to  the  movement  of  his  command  from  the  Penin- 
sular, and  when  it  was  known  that  they  were  to  go  to  the  aid  of  Pope, 
Porter  was  enabled  to  accelerate  the  movement — in  the  words  of  the  wit- 
ness, "  to  embark  that  much  sooner  and  send  the  transports  back  for 
others,"  (184.)     Nor,  finally,  was  the  President  informed  that,  in  answer- 


20 

inp:  a  question  of  the  accused,  tlie  same  witness  had  said  :  "  I  have  never 
seen  anything  to  lead  me  to  think  that  he  (the  accused)  was  anything 
BUT  A  FAITHFUL  AND  LOYAL  OFFICKR ;"  nov  that,  ill  this  Opinion,  every 
officer  who  knew  him,  and  had  vvitne.ssed  his  condnct  throughout  the  war, 
as  well  as  when  he  was  under  Pope's  command,  e.\|)re.ssed,  and  in  the 
strongest  terms,  perfect  concurrence  in  this  opinion. 

General  McClellan,  under  whose  special  eye  he  had  served  in  council 
and  on  the  field,  so  spoke  of  him.  He  said  that  from  the  time  Porter 
"knew  he  was  to  go  to  the  assistance  of  General  Po|)e,"  he  did,  in  his 
opinion,  do  "all  that  an  energetic,  and  zealous,  and  patriotic  officer  could 
have  done."     (Page  196.) 

But  the  opiiiions  of  sensiljle  men — men  of  well  known  character, 
intelligence,  and  patriotism — seem  to  have  been  considered  hy  the 
Judge  Advocate  light  as  air,  when  contrasted  with  those  of  Smith  and 
Roberts.  The  former,  he  appears  to  have  thought,  possessed  hut  the 
ordinary  means  nature  furnishes  ordinary  men  to  form  opinions,  whilst  to 
one,  of  the  latter,  at  least.  Smith,  she  had  supplied  "instrumentalities 
which,  while  defyin"- all  human  analysis,  nevertheless  comi)leteIy  command 
the  homage  of  human  faith,"  and  as  to  Roberts,  his  well  known  and  uni- 
versally acknowledged  character  for  perfect  veracity,  ahnost  chronic  love 
of  truth  and  spotless  rejjutation  with  his  brother  officers,  placed  his  evi- 
dence and  the  sincerity  of  his  opinions  beyond  all  possible  suspicion. 

That  a  chivalrous  officer,  whose  life  had  been  given  to  his  country,  and 
who  but  recently  had  so  added  to  the  reputation  of  its  flag,  should  be 
sacrificed  to  reasoning  so  repugnant  to  common  sense  that  the  unpreju- 
diced mind  rejects  it  at  once  as  an  insult  to  its  intelligence,  is  one  of  the 
many  extraordinary  occurrences  which,  during  the  present  rebellion,  has 
so  astounded  the  public.  What  but  ^intellect  perverted,  could  claim,  as 
is  done,  for  treason,  the  nobleness  of  patriotism, — for  oaths  violated,  the 
character  of  virtue, — for  rebellion,  the  justification  of  an  absurd  theory, 
or  of  an  oppression  that  existed  nowhere  but  in  a  diseased  fancy  ?  And 
what  adds,  if  that  be  possible,  toHhe  injustice  of  the  use  attem|)tcd  to  be 
made  of  these  despatches,  and  so  strongly  indicates  a  predetermined  con- 
clusion against  Porter,  is  the  fact  that,  although  stated  to  be  offered  to 
establish  his  alleged  contemplated  treachery,  the  Judge  Advocate  objected 
to  Porter's  giving  in  evidence  other  despatches  to  General  Burnside  a 
few  days  before  and  after  the  2Gth  and  29th  of  August,  (the  dates  of 
those  offered  by  the  Government,)  that  is,  from  the  22d  of  August  to  the 
1st  of  September,  to  disprove  the  alleged  purpose,  the  animus.  Strange 
as  it  may  seem,  the  objection  was  sustained  by  the  Court,  and  the  proof 
rejected.  A  protest  was  entered, — (see  Appendix  1.)  That  protest  was 
published  in  the  papers  of  the  day,  and  in  a  short  period  the  Court  and 
the  Judge  Advocate  saw  that  the  ruling  of  the  Court  was  received  with 
astonishment  and  disapprobation  by  the  intelligent  press  of  the  country. 
Clearly  illegal  as  the  decisiou  v/as,  and  strange  as  it  is  that  it  did  not  so 


21 

appear  to  the  Jiidsrc  Advocate  aiul  the  Court  at  tlu>  first,  they  adhorcrl  to 
it  uiilil  tlie  maiiiCestatioii  of  i)Ml)lic  opinion  on  the  subjoct  caused  him  to 
sn<r<;:est  llie  vvaivinjir  of  his  oltjeetion,  and  ihe  Court  to  admit  the  evidence. 
The  despatches  wore  then  received,  but  no  one,  aware  of  the  circumstances 
under  wiiich  they  were  received,  believed  that,  however  conchisive  they 
were  in  disprovinp^  the  alleu'ed  criminal  intent  or  anin)us,  they  would  have 
the  slif?htest  etTect  with  the' Court  or  the  Judge  Advocate.  Tlie  result 
proved  that  in  this  opinion  there  was  no  error.  Nor  does  the  Judge 
Advocate,  in  his  review,  even  notice  them.  The  only  reference  he  makes 
to  them  is  to  a  single  one  of  these  despatches  which  Porter  desired  to 
send,  and  was  not  permitted  to  send,  to  Major  General  McClellan,  dated 
2d  of  September,  18(52,  and  that  one  is  not  given  at  length;  and, 
although  admitted  to  be  "fnll  of  fervent  patriotism  and  professions  of 
devotion  to  his  duty  in  connection  with  the  Army  of  Virginia  and  its 
commander,"  the  Judge  Advocate  adds  that,  "  unhap):)ily  it  came  too 
late."  The  merest  trifle,  which  a  fair  mind  would  exclude  as  evidence  of 
charges  of  dishonor  and  treachery  against  any  one,  much  less  a  soldier, 
ever  before  esteemed,  is  seized  upon  with  avidity  and  tortured,  or  sought 
to  be  tortured,  inconsistent  as  the  effort  is  with  common  sense,  into  proof 
of  guilt,  whilst  the  weightiest  facts,  those  which,  with  such  a  mind,  would 
be  conclusive  of  innocence,  for  the  nrost  part  are  not  mentioned  at  all, 
or  when  in  part  referred  to,  are  rejected  as  unimportant,  or  as  coming 
"too  late."  The  President,  however,  should  have  been  told  of  them, 
and  the  public  should  see  the  nature  of  the  facts  so  discarded  as  not 
proving,  or  hardly  as  tending  to  prove,  Porter's  innocence  of  purpose. 
The  Judge  Advocate,  even  in  regard  to  the  despatches  which  he  uses  as 
establishing,  in  his  view,  the  guilty  purpose,  omits  to  give  the  whole  of  any 
one  of  them.  lie  extracts  a  few  expressions  from  each,  without  alluding 
to  its  context,  a  practice  ever  unfair  and  unreliable.  Had  even  the  whole  of 
these  despatches  been  di.-closed  the  President  would  have  seen,  and  the  pub- 
lic, for  whom  tlie  review  of  the  Judge  Advocate  was  also  designed,  as  proved 
by  its  general  circulation  by  the  War  Department,  that  these  despatches 
themselves  proved  no  faithlessness  on  Porter's  part  to  Pope  or  the  country, 
either  actual  or  contemplated.  Whilst  those  which  he  does  not  give  at 
all,  or  even  allude  to,  with  the  exce])tion  of  the  one  just  mentioned,  to 
McClellan,  of  2d  September,  all  demonstrate  a  tixed  purpose  and  earnest 
solicitude  to  do  his  full  duty  to  both.  (The  reader  will  find  these  despatches 
in  pp  228-23.5.)  It  is  conlidently  asserted  that  every  one  of  them  evinces 
not  only  a  mere  willingness,  but  the  strotigest  wish  to  do  every  thing 
in  his  power  to  render  the  campaign  successful,  or,  failing  in  thai,  to  les- 
sen, as  far  as  possible,  any  disaster  that  might  befall  it,  and  especially  to 
save  the  Ca[)itol.  His  orders,  too,  to  his  corps  commanders,  to  be  found 
in  the  same  pages,  evidence  intelligence,  zeal  and  energy,  and  the  des- 
patch referred  to,  to  McClellan,  of  2d  September,  whilst  he  was  still 
under  the  command  of  Pope,  and  involved  in  his  fate,  breathes  the  same 


22 

patriotic  spirit.  That  despatch  was  an  answer  to  one  from  McClellan  of 
ihe  day  before,  urging  him  "and  all  friends"  to  give  "the  fullest  and 
most  cordial  co-operation  to  General  Pope."  A  despatch  written,  as 
McClellan  states,  (p.  191,)  at  the  instance  of  and  to  satisfy  the  apprehen- 
sions of  the  President,  and  not  to  remove  any  apprehensions  of  his  own. 
To  quote  McClellan's  words  :  "  I  had  no  doubt  then  in  my  own  mind  but 
that  the  Army  of  the  Potomac,  and  all  connected  with  it,  would  do  their 
duty  without  there  being  any  necessity  for  any  action  on  my  part."  To 
that  message.  Porter's  of  the  2d  says:   "You  may  rest  assured  that  all 

YOUR  FRIENDS,  AS  AVELL  AS  EVERY  LOVER  OP  HIS  COUNTRY,  WILL  EVER 
GIVE,  AS  THEY  HAVE  GIVEN,  TO  GENERAL  PoPE,  THEIR  CORDIAL  CO-OPERA- 
TION  AND  CONSTANT  SUPPORT  IN  THE  EXECUTION  OF  ALL  ORDERS  AND 
PLANS.  Our  killed  and  wounded  and  enfeebled  TROOPS  ATTEST  OUR 
DEVOTION  TO  DUTY." 

So  conscious  was  Porter  of  having  fully  performed  his  duty,  the  mo- 
ment he  received  McClellan's  despatch  he  sought  Pope,  showed  it  to  him, 
and  asked,  "  why  he  supposed  such  a  despatch  had  been  sent  to  him?" 
(P.  20.)  Pope  could  give  him  no  explanation.  His  answer  to  McClellan 
he  was  not  allowed  to  send,  but  it  clearly  evinces  the  utter  groundlessness 
of  suspicion.  His  "  killed  and  wounded  and  enfeebled  troops  "  he  points 
to,  as  he  well  might,  as  the  witnesses  of  duty  devotedly  performed.  Of  his 
command,  gallantly  led  by  himself,  (for  he  ever  led  it,)  in  the  battle  of  the 
30th  of  August,  three  days  before,  in  a  vain  effort  to  turn  the  tide  of  Pope's 
defeat,  and  save  the  honor  of  our  flag,  consisting  of  about  seven  thousand 
men,  he  lost  in  killed  and  wounded  over  two  thousand  and  thirty-two, 

INCLUDING  IN  THE  KILLED  ONE  HUNDRED  AND  FIFTEEN  OFFICERS.       All  this, 

however,  in  the  view  of  the  Judge  Advocate,  was  "too  late" — gallantry  too 
tardily  displayed — wounds  and  deaths  proving  nothing — patriotism  and 
sense  of  duty  speaking  but  for  the  day,  and  not  an  hour  before  The  27th, 
28th  and  29th  of  August  found  him  a  traitor  in  fact,  as  well  as  intent.  The 
30th,  a  noble  soldier  and  patriot!  And  yet,  with  the  transparent  injustice 
of  such  reasoning,  the  Judge  Advocate,  without  seeming  to  be  aware  of  it 
and  of  its  absurdity,  tells  the  President  and  the  country,  in  concluding  his  re- 
view, that  "  the  Court  was  careful  to  give  to  the  accused  the  benefit  of  all 
well  founded  doubts  that  arose  in  their  minds  in  reference  either  to  the  fact 
of  disobedience  or  in  reference  to  the  measure  of  criminality  that  prompted 
it,  and  hence  found  him  not  guilty  of  the  4th  and  5th  specifications  of  the 
first  charge  ;"  and  that,  in  the  same  spirit  of  generous  clemency,  he  himself 
withdrew  "the  4th  specification  of  the  second  charge."     (P.  317.) 

And  this  statement  is  seriously  made,  without  even  intimating  that  in 
the  support  of  the  specifications  of  the  first  charge  to  which  he  reters, 
there  was  not  only  no  evidence  offered  by  the  Government,  but  that  what 
it  did  give,  without  considering  what  was  produced  by  the  accused,  estab- 
lished the  utter  groundlessness  of  both  ;  and  without  informing  the  Presi- 
dent that  the  specification  of  the  second  charge,  which  he  claims  credit 


23 

for  having  generously  withdrawn,  related  to  Porter's  conduct  in  the  very 
battle  of  the  30th  of  August,  where,  under  his  lead,  the  battle  ground  was 
literally  mired  with  the  blood  of  his  devoted  followers,  and  where  his 
efforts  were  so  greatly  instrumental  in  diminishing  the  disaster  of  the  day. 
Having  thus,  it  is  confidently  submitted,  shown  not  only  that  there  is 
no  proof  to  establish  the  alleged  criminal  animus  of  Porter,  but  con- 
clusive evidence  to  the  contrary,  the  assumption  of  which  animus  consti- 
tutes the  very  foundation  of  the  argument  of  the  Judge  Advocate,  the 
charges  and  specifications  will  be  considered  in  theii"  order,  and  in  con- 
nection with  the  whole  evidence. 

First  Charge. — First  Specification. 

The  first  charge  was  the  "  Violation  of  the  Ninth  Article  of  War," 
and  the  first  specification,  a  failure  to  obey  the  following  order  of  Major 
General  Pope,  dated  "Bristow  Station,  August  27th,  1S62,  6.30  P.  M., 
Major  General  F.  J.  Porter,  Warrenton  Junction  :" 

"  General  :  The  Major  General  Commanding  directs  that  you  start  at 
one  o'clock  to-night,  and  come  forward  with  your  whole  corps,  or  such 
part  of  it  as  is  v/ith  you,  so  as  to  be  here  by  daylight  to-morrow  morning. 
Hooker  has  had  a  very  severe  action  with  the  enemy,  with  a  loss  of  about 
three  hundred  killed  and  wounded.  The  enemy  has  been  driven  back, 
but  is  retiring  along  the  railroad.  We  must  drive  him  from  Manassas, 
and  clear  the  country  between  that  place  and  Gainesville,  where  General 
McDowell  is.  If  Morell  has  not  joined  you,  send  word  to  him  to  push 
forward  immediately ;  also  send  word  to  Banks  to  hurry  forward  with  all 
speed,  to  take  your  place  at  Warrenton  Junction.  It  is  necessary,  on  all 
accounts,  that  you  should  be  here  by  daylight.  I  send  an  officer  with 
this  dispatch  who  will  conduct  you  to  this  place.  Be  sure  to  send  word 
to  Banks,  who  is  on  the  road  from  Fayetteville,  probably  in  the  direction 
of  Bealton.  Say  to  Banks,  also,  that  he  had  best  run  back  the  raih-oad 
trains  to  this  side  of  Cedar  P^un.  If  he  is  not  with  you,  write  him  to 
that  effect. 

"P.  S. — If  Banks  is  not  at  Warrenton  Junction,  leave  a  regiment  of 
infantry  and  two  pieces  of  artillery,  as  a  guard  till  he  comes  up,  with  in- 
structions to  follow  you  immediately.  If  Banks  is  not  at  the  Junction, 
instruct  Colonel  Cleaky  to  run  the  trains  back  to  this  side  of  Cedar  Run, 
and  post  a  regiment  and  section  of  artillery  with  it." 

The  Judge  Advocate  devotes  five  pages  of  his  review  to  maintain  this 
specification.     With  what  justice,  we  will  now  see  : 

First. — The  order  was  to  bring  by  the  specified  time,  "daylight,"  the 
following  morning,  not  a  pari  merely,  but  his  "  whole  corps,"  or  the 


24 

whole  of  "such  part  as  is  with  you."  Porter  had  artillery  with  hiiii,  an 
arin  of  vital  moment,  at  the  time,  to  the  accomplishment  of  Pope's  pur- 
pose, and  to  the  safety  of  his  own  command.  This  part  of  his  force,  too, 
the  body  of  the  order  clearly  embraced. 

And  if  that  could  be  doubted,  the  postscript  made  it  clear.  For  in  the 
postscript  he  was  told  that,  in  the  event  of  his  not  finding  Banka  "at 
Warrenton  Junction,"  he  was  to  "  leave  a  regiment  of  infantry  and  two 
pieces  of  artillery,  as  a  guard  until  he  comes  up,  with  instructions  to 
follow;"  that  is,  to  folJott'  with  his  own  and  these  two  pieces.  The  artil- 
lery of  Porter  was,  therefore,  manifestly  included  in  the  order.  No  part 
of  that  arm  was  to  be  left  behind,  except  in  the  contingency  mentioned, 
and  then  only  two  guns,  and  but  for  a  time.  On  this  fact,  the  Judge  Ad- 
vocate is  Hilevt,  although  its  significance  is  most  important.  The  order 
exacted  the  movement  of  Porter's  entire  force,  and  embraced,  in  words, 
his  artillery.  To  have  left  that  behind,  would  have  been  disobedience; 
and  if  any  untoward  result  had  ensued  to  his  own  command  or  to  Pope's, 
he  should,  and  no  doubt  would,  have  been  held  responsible.  Nearly  all 
the  witnesses  proved  that  the  artillery  could  not  have  been  moved  at  one 
o'clock.  In  this  part  of  the  case,  and  indeed  throughout,  the  prejudice  of 
the  Judge  Advocate  reveals  itself  After  relying,  and  illogically  and  un- 
charitably using  the  portion  of  the  evidence  which  he  quotes,  as  bearing  on 
the  question  involved  in  this  specification,  he  tells  the  President :  "  That 
there  are  certain  other  facts  disclosed  in  the  testimony,  which  go  far  to  indi- 
cate a  settled  purpose  on  the  part  of  the  accused  t#  disregard"  the  order. 
On  receiving  it,  he  said  to  the  Generals  who  were  with  him,  "there  is 
soraetliing  for  you  to  sleep  upon,"  instead  of  telling  them  what  the  Judge 
Advocate,  in  his  enthusiasm,  says  he  should  have  told  them,  though  he 
fails  to  say  what  that  was. 

Conceding  that  what  he  did  say  is  correctly  given,  one  would  suppose 
that  if  it  did  not  for  a  moment  excite  the  surprise  of  the  officers  to  whom 
it  was  addressed,  (and  against  whom  no  fault  of  motive  or  want  of  skill 
is  attributed,  and  all  of  whom  are  now  faitlifully  serving^their  country,) 
officers  who  knew  the  actual  condition  of  things,  and  saw  the  manner  and 
heard  the  tone  in  which  Porter  spoke,  an  unprejudiced  mind  would  find 
in  that  fact  alone,  ample  confutation  of  the  imputation,  and  dismiss,  as 
wholly  unjust  and  uncharitable,  all  suspicious  speculations  that  could  be 
founded  upon  it. 

But  Porter  did  not  say  what  is  stated  by  the  Judge  Advocate.  The 
reliable  proof  is  the  other  way.  Wiiat  he  did  say,  was  not  in  any  degree 
"saddening  or  discouraging"  to  the  officers  who  heard  it,  or  to  those 
who  believe  "that  in  the  prosecution  of  this  war,  much  vigor  is  much 
wisdom. "^  In  that  maxim  no  one  more  decidedly  concurs  than  Porter 
himself  This  is  evidenced  by  his  whole  conduct  since  the  war  com- 
menced.    "What  he  did  say,  on  reading  the  order  to  his  Generals,  waa 


25 

proved  by  General  Buttf.rfifi.d,  one  of  those  present  at.  the  time.  That 
officer  states,  that  as  soon  as  Porter  received  tiie  ordi-r,  he  haiuhd  it  "to 
General  Murkij,  or  to  General  Svkks.  who  were  present,  and  said  there 
was  a  chance  for  a  xhoiH  nop,  or  somethintr  of  that  sort,  (I  do  not  remem- 
ber the  exact  words,)  indicaling  that  there  was  hut  little  timi^  for  prepa- 
ration.''^ And  the  same  witness  further  stated,  .that  on  objections  being 
made  by  Sykes  or  Morell,  or  both,  to  marching  at  1  A.  M  ,  (they  both 
testified  that  they  did  so  object,)  Porter  stated,  what  the  Judge  Advocate 
neitlier  gives  nor  alludes  to,  "  In  reply  to  these  remarks,  General  Porter 
spoke  rather  deciclt'dh/,  that  there  was  the  order — it  must  be  ohmjed ; 
that  those  who  qaee  the  order  knew  whither  the  vecessitifs  of  the  ease 
would  ivarrant  the  exertions  t/iot  had  to  be  made  to  comply  with  it.  I 
do  not  state  that  as  his  exact  words,  but  as  the  substance  of  what  he  said." 
(P.  185.) 

What  evidence  is  this  of  want  of  vigor,  or  of  a  purpose  to  disobey  ? 
No  wonder  that  neither  Sykes,  Morell,  nor  IJuttertield  saw  in  it  nothing  to 
regret, — nothing  indicating  a  jjurpose  or  a  willingness  to  disobey  the  order. 
Nothing  "to  the  last  degree  saddening  or  discouraging  for  those  who 
believe  that  in  the  prosecution  of  this  war  mucli  vigor  is  much  wisdom." 
Nothing  sad  or  discouraging  at  all,  but  on  tlie  contrary,  an  ardent  desire 
to  obey  the  order.  The  Judge  Advocate,  however,  though  he  heard  not 
the  words,  nor  the  tone,  nor  saw  "the  expression  of  the  eye  and  the  play 
of  the  features,"  which  he  tells  us,  "often  afford  a  language  more  to  be 
relied  on  than  that  of  the  lips,"  (p  3i)l,)  ruminating  in  his  study,  and 
even  without  a  Smith,  or  any  other  expert  in  the  reading  of  "  the  inter- 
communings  of  s|)irits"  to  supply  his  own  possible  want  of  information, 
and,  with  assumed  confidence,  construes  them  to  have  been  most  sad  and 
discouraging,  and  to  have  exhibited  nothing  of  "  vigor,"  or  of  "  wisdom." 
Can  this  be  reconciled  with  his  well  known  ability,  except  upon  the 
ground  of  his  fixed  antecedent  hypothesis  of  Porter's  guili  ? 

I. — But  to  the  evidence. 

The  orffcr  was  received,  as  admitted  by  the  Judge  Advocate,  between 
half-past  nine  and  ten  o'clock  of  the  evening  of  the  27th  of  August.  The 
Generals  who  were  present,  Mwrell,  Sykes  and  Butterfield,  all  say  it  was 
about  ten  o'clock. 

t 

IT. — "When  was  the  march  under  the  order  begun  ? 

The  Judge  Advocate  says,  it  was  not  until  aliout  dawn.  To  make  that 
statement  good,  he  quotes  a  sentence  or  two  from  the  testimony  of  a  few 
witnesses.  But  why  not  all  that  these  witnesses  said  ?  And  es])ecially 
why  not  have  given  the  evidence  of  the  Generals,  who  were  present  when 
the  order  was  received,  and  had  charge  of  the  movement,  and  of  that  of 
General   Griffin,   Lieutenant    Colonel   Locke,    Captains   Martin    and 


26 

MoNTEiTH,  and  Lieutenant  Weld  ?  In  fairness,  it  is  obvious  that  this 
should  have  been  done.  General  Morell  was  asked,  "about  what  time  did 
the  march  or  movement  of  troops  commence,"  and  answered,  "  at  tJwee 
o^clock,  or  very  near  that  time.    That  was  the  hour  designated."  (P.  145.) 

General  Butterfield,  (by  Presidential  appointment  the  chief  of  Gene- 
ral Hooker's  staff,  whilst  he  was  in  command  of  the  army,)  says,  that 
General  Porter  fixed  three  o'clock  as  the  hour,  and  that  the  witness 
"wrote  an  order  in  General  Porter's  tent,  for  my  command  to  be  in  line 
to  march  at  tJwee  o'clock.''^  And  in  reply  to  the  question,  "did  you 
march  or  attempt  to  march  at  three  o'clock,  said,  "I did;"  "I  had  my 
column  formed  and  staff  ofiScers  sent  out  to  notify  me  where  the  head  of 
my  column  should  take  its  place  in  the  line.  We  marched  from  the  camp 
up  to  the  road,  and  there  waited  until  v/e  could  take  our  place,  which  was 
at  the  rear  of  General  Morell's  division."  (Pp.  185,  186.)  General  Griffin, 
said,  "  I  received  an  order  about  twelve  o'clock  on  the  night  of  the  21th 
of  August,  to  move  my  brigade  at  three  ©"'clock  in  the  morning.  At  three 
o'' clock  in  the  morning  I  started  from  my  camp  towards  Bristow  Sta- 
tion, and  marched  about  a  mile  or  two,  to  where  I  halted,  and  there  I 
remained  at  the  head  of  my  column  until  about  two  hours  after  daylight. 
(Why  this  delay  he  satisfactorily  explains.)     (Pp.  160,  161.) 

Lieutenant  Colonel  Locke  being  asked,  "  did  the  corps  march  at  three 
o'clock,"  answered,  "yes."  (P.  134.)  Captain  Moutieth,  "at  what 
time  that  morning  did  General  Porter  begin  to  move  his  troops  ?"  "  I 
should  think  it  was  about  three  o'clock.  (P.  127.)  And  such  is  the  testi- 
mony of  all  the  witnesses  upon  this  point,  in  fact  of  all  who  had  the  best 
opportunities  of  knowing,  including  the  Generals  whose  duty,  to  move 
at  three  o'clock,  under  the  order  they  all  say  they  received  from  General 
Porter  the  night  before,  it  was  to  see  that  that  order  was  obeyed,  and  to 
superintend  the  movement.  How  idle  is  it  to  disregard  all  of  this  evi- 
dence as  unreliable,  and  to  find  a  fact  inconsistent  with  it  upon  such  testi- 
mony, little,  too,  as  that  is  to  which  the  Judge  Advocate  refers,  and  of 
that  little  to  General  Pope's,  who  was  not  present  at  the  time,  who,  to  an 
inquiry,  "  whether  on  the  receipt  of  certain  messages  from  tli%  accused, 
the  latter  was  on  his  march,  in  obedience  to  the  order  of  the  2'7th  of 
August,"  answered,  "  I  do  not  know  that  he  was.  On  the  contrary,  from 
a  note  I  had  received  from  him,  (not  however,  produced,  as  were  none  of 
Porter's  notes  to  this  witness,  who  sail  that  he  had  mislaid  them  all,)  I 
did  not  understand  that  he  would  march  until  daylight  in  the  morning." 
A  story  at  war  with  the  fact,  that  he  had  ordered  the  march  to  commence 
at  three,  and,  as  proved  by  the  witnesses  just  referred  to,  that  it  did  com- 
mence at  that  hour. 

But,  independent  of  the  positive  proof  as  to  the  time  of  the  march,  and 
supposing  that  the  mind  could  possibly  doubt  upon  the  point  with  that 
proof  before  it,  what  are  the  probabilities  ?     Every  General  and  other 


27 

oflBcer  present  when  the  order  was  receired,  or  who  was  in  Porter's  tent 
afterwards  on  that  evening,  tells  us  that  Porter  gave  a  positive  order  to 
march  at  three  o^clock. 

If  not  obeyed,  these  Generals,  who  had  to  execute  the  order,  were  liable 
to  censure.  Who  censures  them  ?  Not  the  Government,  certainly. 
For,  as  before  stated,  and  fortunately  for  the  country,  they  are  all  of  them 
in  high  favor.  Porter  is  the  only  victim.  lie  alone  has  been  sacriliced, 
or  rather  as  far  as  his  reputation  is  concerned,  a  futile  effort  has  been 
made  to  sacrifice  him. 

III. — But,  admitting  that  he  did  begin  his  march  at  three,  A.  M.,  the 
Judge  Advocate  maintains  that  he  was  guilty  of  disobedience,  meriting 
the  sentence  of  the  Court,  because  he  should  have  marched,  or  attempted 
to  march,  at  1  A.  M. 

However  positive  in  that  respect  the  order  was,  it  was  confidently  stated 
in  the  defence,  upon  the  authority  of  a  military  maxim  of  Napoleon,  that 
passive  obedience  to  a  military  order  is  only  exacted  "  where  it  is  given 
by  a  superior  who  is  present  on  the  spot  at  the  moment  when  he  gives  it." 
The  authority  of  this  maxim  is  not  disputed  by  the  Judge  Advocate — he 
only  denies  its  application  in  this  instance.  And  he  does  this  but  doubt- 
ingly.  "Nor  is  it  believed,^''  (says  he,)  that  the  accused  can  "find  shel- 
ter '•  under  it.  And  why — can  the  reader  imagine  ?  because,  as  this  offi- 
cial military  jurist  says,  "  the  discretion  it  allows  to  a  subordinate,  sepa- 
rated from  his  superior  officer,  is  understood  to  relate  to  the  means,  and 
not  to  the  end  of  an  order.  When  the  accused  determined  that  instead 
of  starting  at  one  o'clock  he  would  start  at  three  or  four,  (he  adds  an 
hour,  for  all  agreed  that  Porter  ordered  the  march  to  begin  at  three,)  he 
did  not  resolve  he  would  arrive  at  Bristow  Station  by  daylight  in  a  differ- 
ent manner  from  that  indicated  by  his  Commanding  General,  but  that  he 
would  not  arrive  there  by  daylight  at  all.  In  regard  to  this,  the  end  of 
order,  he  had  no  discretion."     (P.  360.) 

What  technicality.  A  just  and  enlightened  Judge  once  said  of  a  like 
display  in  a  case  before  him,  "it  is  stretching  technicality  to  the  very 
verge  of  quibbling." 

A  few  observations  will  show  the  weakness  of  the  reasoning  of  the 
Judge  Advocate. 

I.  In  the  first  place,  no  such  qualification  of  the  maxim  is  anywhere 
suggested  by  its  great  author.  His  language  is  general,  comprehensive 
of  end  as  well  as  means.  Passive  obedience  to  an  order  in  any  ])articu- 
lar,  whether  of  end  or  means,  is  not  to  be  exacted  when  the  superior  who 
gives  it  is  not  present  at  the  place  where  it  is  to  be  executed.  In  the 
words  of  Napoleon,  such  obedience  is  to  be  exacted  "only  when  it  is 
given  by  a  superior  who  is  present  on  the  spot  at  the  moment  when  he 


28 

gives  it"  And,  ns  was  his  wont,  he  assigns  snccintly,  l)ut  clearly,  the 
reasons  for  the  rule  Bavins;  then,  (that  is  when  he  is  present  on  the 
spot,)  knowledji'e  of  the  state  of  things,  he  can  listen  to  the  objections, 
"  and  give  the  necessary  explanations  to  him  who  should  execute  the 
order."  This,  of  course,  he  cannot  do  when  he  is  not  present.  To  en- 
force absolute  obedience  to  an  order  given  by  a  superior  who  is  not  pre- 
sent, and  may  not  know  the  condition  of  the  country,  or  the  dilficulties  in 
the  way  of  its  execution,  might  at  times  lead  to  the  most  disastrous  re- 
sults— imperil  a  corps,  frustrate  the  very  purpose  of  the  superior,  and  so 
far  from  aiding,  lead  to  his  utter  defeat. 

II.  What  authority,  other  than  his  own,  is  there  for  his  statement,  that 
the  maxim  "is  understood  to  relate  to  the  means  and  not  the  end  of  an 
order  ?"  He  cites  none.  Would  he  not,  if  he  had  known  of  one  ?  And 
would  he  not  have  known  if  there  be  one  ?  He  shows  himself  to  be 
fond  of  military  literature,  and  to  have  its  leading  points  fastened  in  his 
memory.  He  graihically  calls  to  the  President's  recollection,  the  stirrir)g 
scenes  of  Hohen  Linden — the  great  gallantry  and  matchless  energy  of 
Richpanse — the  dashing  onset  of  Ney,  and  unites  his  own  tribute  to  that 
of  the  renowned  historian  of  The  Consulate  and  the  Empire  to  the  con- 
sumate  skill  of  Moreau,  as  being  illustrated  more  brilliantly  than  in  any 
of  his  other  battles  in  this,  "the  greatest  in  the  present  century." 

Wlio  can  donbt  that  a  mind  which  so  evidently  delights  in  military 
reading,  and  whose  office  of  Judge  Advocate  General  makes  it  iiis  duty 
to  do  all  that  he  can  to  master  the  science,  as  far,  at  least,  as  concerns 
obedience  to  orders,  could  have  failed  to  discover  in  what  authority,  great 
or  small,  it  is  stated,  that  the  quoted  maxim  of  Napoleon  was  understood 
by  him  or  any  one  else,  military  man  or  not,  to  relate  "to  the  means  and 
not  the  end  of  an  order." 

III.  But  conceding,  for  a  moment,  that  such  is  its  meaning,  how  does 
that  meaning  deprive  Porter  of  the  benefit  of  the  maxim  ? 

I.  It  is  said  by  the  Judge  Advocate,  that  "the  end  of  the  order  was 
that  Porter  should  be  with  his  command  at  Bristow  Station  by  daylight 
the  following  morning." 

II.  That  Porter  did  not  decide  to  get  there  at  that  time,  "in  a  different 
manner  from  that  indicated  by  the  order,  but  that  he  would  not  get 
there  at  all,  at  that  time,  and  that  as  to  get  there  at  that  time,  was  "the 
end  of  the  order,  he  had  no  discretion  upon  the  subject  "  Was  the  end 
of  the  order  as  suggested  ?  The  end  must  be  the  oliject  to  be  accom- 
plished by  the  order.  The  order  stated  that  "  Hooker  has  had  a  very 
severe  action  with  the  enemy,  with  a  loss  of  about  three  hundred  men 
killed  and  wounded.     The  enemy  has  been  driven  back,  but  is  retiring 


29 

alonp:  the  railroad  ;  we  must  drive  him  from  Manassas,  and  clear  the 
country  between  tliat  place  and  (jrainesville,  where  General  McDowell  is." 
To  clear  this  portion  of  the  country,  then,  was  Po)»e's  oly'ect.  lie  issued 
the  order  with  that  view.  As  a  means  to  etl'ect  it  he  desired  Porter's 
corps.  In  what  condition  ?  In  fii'^iiting  condition.  In  wliat  way  to  get 
to  him  ?  By  the  best  and  shortest  way.  Time  was  important,  but  time 
was  to  yield  to  the  ol>ject  to  be  accomplished.  Pope  did  not,  and  could 
not,  know  what  would  be  the  condition  of  Porter's  command  when  the  order 
would  be  received.  He  did  not  fully,  if  at  all,  know  the  condition  of  the 
roads,  nor  what  would  be  the  character  of  the  night.  In  his  designation 
of  the  time  of  arrival  at  Bristo  v's  Station,  did  he  mean  to  say,  tiiat  no 
matter  in  wliat  plight  the  troops  should  be, — how  far  they  may  have 
marched  that  day  and  evening — what  meals  they  may  have  had — what 
rest — what  the  state  of  the  roads — what  the  character  of  the  night,  and 
what  the  opinion  of  every  officer  of  the  command  as  to  the  practicability 
of  getting  to  Bristow  Station  at  daylight — did  he  aiean  that,  regardless 
of  all  these  considerations,  the  order  was  to  be  literally  obeyed.  lie  did 
not,  and  could  not  have  been  supposed  by  Porter  to  have  so  meant,  ex- 
cept on  the  supposition,  tlwt  he  was  an  imi)ecile.  The  character  for  intel- 
ligence of  Pope,  therefore,  should  save  him  from  the  damaging  effect  of 
such  a  proposition.  But  in  fact  that  was  not  his  meaning.  His  conduct, 
the  next  day,  when  the  troops  did  arrive  at  the  designated  place,  which, 
he  says,  was  10.20  A.  M.,  (Porter  was,  in  fact,  there  about  8  A.  M.,) 
(p.  19,)  proves,  that  he  was  guilty  of  no  such  folly.  His  order,  accord- 
ing to  the  view,  adopted  by  the  Court  and  by  the  Judge  Advocate, 
had  been  shamelessly  disobeyed.  He  had  every  reason,  that  view  assumes, 
to  know  that  it  might  have  been  obeyed.  That  Porter  should  be  there  at 
daylight  with  his  command,  was,  it  is  said,  the  very  end  of  the  order. 

That  end  had  failed  without  justification  or  excuse,  says  the  Judge 
Advocate.  If  so,  how  are  we  to  account  for  the  manner  of  Pope's  recep- 
tion of  Porter  at  8  o'clock  that  morning,  or  at  any  time  after  the  command 
arrived.  On  cross-examination,  Pope  was  asked  "  had  you  any  conversa- 
tion with  him,  (Porter)  in  relation  to  the  order  of  the  27th,  and  his  having 
obeyed  or  disobeyed,  and  if  so,  what."  He  answered,  "I  do  not  remem- 
ber any  conversation  with  him  in  reference  to  obeying  or  disobeying  the 
order,  although  I  had  much  conversation  with  him."  In  replying  to  an- 
other question,  requesting  him  to  try  and  refresh  his  recollection,  he  said 
"  I  slioiild  not  be  likely  to  complaiu  to  my  subordinate  officer  of  a  dis- 
obedience to  my  orders,  (why  he  does  not  explain,  except  that  Porter 
was  his  subordinate,)  I  am  therefore  very  sure  that  I  did  not  com- 
plain TO  General  Porter."  He  added,  "I  am  not  sure  that  he  gave 
me  any  ex))lanations.  I  have  a  general  recollection  that  he  spoke  to  me 
of /(W  march,  and  the  difficulties  that  he  had  in  getting  wagons  out  of 
the  road,  but  the  particulars  I  do  not  remember,  for  I  was  very  much 


30 

occupied,  and  the  necessity  which  made  his  presence  important  had 
passed  away."  (P.  18.)  On  his  examination  also,  in  chief  by  the  Judge 
Advocate,  he  was  asked,  "  did  he  (Porter,)  at  that  time,  (the  time  of  his 
arrival,)  or  at  any  time  before,"  "  explain  to  you  the  reason  why  he  did 
not  obey  the  order."  He  answered,  "  He  wrote  me  a  note  which  I  re- 
ceived I  think  in  the  morning  of  the  28th,  very  early  in  the  morning, 
perhaps  a  little  before  daylight.  I  am  not  quite  sure  about  the  time. 
The  note  I  have  mislaid  (as  before  stated,  he  said  that  he  had  mislaid  all 
of  Porter's  notes  to  him,  strange  negligence  this,  and  one  that  credulity 
itself  could  scarcely  believe,  if  the  witness'  character  for  veracity,  and  his 
repugnance  to  exaggeration,  either  delicate  or  gorgeous,  was  not  so 
universally  acknowledged.)  I  can  give  the  substance.  I  remember  the 
reasons  given  by  General  Porter,  if  it  is  necessary  to  state  them,  I 
can  do  so,"  Porter  enquired  if  the  witness  had  looked  for  the  note, 
and  he  said  he  had,  "but  had  not  been  able  to  find  it."  The  Judge 
Advocate  then,  although  the  enquiry  ivas  his  own,  and  Porter  said 
"I  do  not  object^'  to  the  witness  giving  his  recollection  of  the  con- 
tents of  the  notes,  said  "I  will  not  press  the  question."  (P.  13.)  It 
appears  then,  that  Pope  had  received  before  daylight  on  the  28th,  from 
Porter  a  written  note,  giving  his  reasons  why  he  would  not  be  able 
to  execute  his  order  literally.  He  sent  no  answer  reiterating  the 
order,  nor  did  he  rebuke,  or  in  any  way  find  fault  with  the  failure  in  its 
passive  obedience.  And  when  Porter  and  himself  met  face  to  face,  at 
8  A.  M.,'and  afterwards  on  that  day,  and  also  during  the  whole  time, 
when  Porter  was  under  his  command,  and  the  whole  subject  was  spoken 
of  between  them,  and  the  difficulties  of  the  actual  march  explained,  did  a 
single  word,  as  Pope  testifies?,  escape  him,  even  faintly  murmuring  regret, 
much  less  censure  ?  This  of  itself  is  conclusive  of  the  groundlessness  of 
the  charge.  The  officer  who  gave  the  order,  when  he  was  made  ac- 
quainted with  all  the  circumstances  attending  its  execution  found  no  fault. 
Defeat  had  not  then  given  his  pride  of  command  a  sore  wound.  His 
ambition  he  no  doubt  thought  would  yet  be  gratified.  He  had  at  the 
time.  Porter  and  his  command  with  him,  and  he  trusted  as  he  well  might 
.to  both,  and  by  his  own  conduct  at  that  time,  it  is  demonstrable  that  he 
never  intended  to  charge  Porter  with  disobedience  to  that  order.  His 
doing  so  was  obviously  an  after  thought.  Defeat  and  not  success  was 
soon  his  fate.  Defeat,  great,  overwhelming  defeat.  The  public  were 
indignant.  If  the  result  could  not  be  attributed  to  Pope,  (and  that  it  could 
be  it  is  not  necessary  here  to  charge,)  the  getters  up  of  the  campaign  as  well 
as  Pope,  impelled  by  natural  mortification,  looked  for  escape  from  the  cen- 
sure which  they  were  certain  to  receive,  to  any  victim  that  could  with 
the  slightest  probability  be  found,  and  Porter  was  selected.  His  conduct, 
his  disobedience,  his  meditated  treachery  were  at  once  alleged  to  be  the 
cause  of  the  defeat.  His  telegrams  were  searched  and  critiscised,  his  con- 
versations hunted  up  and  examined,  and  each  expression,  howsoever  made, 


81 

or  to  whomsoever  made,  CTtncing  a  want  of  confidence  in  Pope's  skill  and 
capacity  for  the  command,  were  seized  upon  and  pressed  into  the  service. 
Whilst  it  is  known  that  some  desired  his  life,  the  Court  satisfied  itself 
by  displacing  him  from  the  army,  and  idly  assuming  to  disfranchise  him 
from  all  places  of  honor  and  trust  under  the  Government.  And  yet,  who 
in  his  senses  concurs  in  the  justice  of  that  sentence,  or  fails  to  stamp  it  as 
a  gross  wrong  to  Porter  and  the  country.  For  a  time  he  may  not  again  be 
permitted  to  honor  his  profession,  and  serve  the  nation  by  other  deeds  of 
skill  and  valor,  but  of  the  past,  he  is  not  deprived.  The  place  in  the 
hearts  of  his  fellow-citizens,  which  he  filled  after  his  crowning  achievement 
of  Malvern,  is  his  still.  And  soon  will  the  people  order  those,  who,  as 
they  should  do,  ^viU  listen  to  the  public  voice,  and  be  alive  to  the  public 
honor,  that  he  must  be  restored  to  their  service,  and  afforded  an  oppor- 
tunity of  adding,  if  that  be  possible,  to  his  own  reputation,  and  to  the 
military  renown  of  the  nation.  But  to  return  to  the  evidence.  It  is  true 
that  to  a  certain  extent  he  critisized  in  his  dispatches  to  Burnside,  the 
plans  of  his  chief.  As  he  did  it,  was  it  a  crime  in  any  view,  militai^y  or 
otherwise  ?  His  critisims  were  for  the  eyes  of  Burnside  only,  and  of 
those  of  the  President  and  Commander-in-Chief,  to  whom  he  must  have 
known,  they  would  be  communicated.  If  he  really  believed  in  their  truth, 
so  far  from  offending,  it  was  his  duty  to  give  the  information,  and  instead 
of  being  punished,  he  should  have  been  thanked  by  the  Government. 
Not  only  was  the  honor  of  the  fiag  involved,  but  .the  very  safety  of  the 
capitol.  Porter  saw  that  both  were  in  danger  by  what  he  believed  to  be 
the  incompetency  of  Pope.  Was  he  to  keep  this  conviction  in  his  own 
breast,  regardless  of  the  army  and  the  nation  ?  Or  was  he  not  on  the 
contrary,  bound  to  speak  his  fears  to  those  who  had  the  power  to  guard 
against  the  apprehended  peril  ?  Were  his  fears  honestly  entertained  ? 
Was  his  motive  for  stating  them  patriotic  ?  Let  his  dispatch  to  McClel- 
lan  of  1st  September,  8.30  P.  M.,  give  the  answer.  After  telling  him  of 
Bayard's  report  of  the  movements  of  the  enemy,  he  says,  •'  I  can  see  the 
dust  and  flags  :  columns  evidently  moving  directly  north  :  evident!}'  to- 
wards Leesbnrg.  If  you  can,  I  hope  you  will  protect  the  fords  into 
Maryland,  and  guard  the  Railroad  to  Baltimore.  I  think  we  will  have  a 
light  before  night.  The  enemy  are  between  us  and  Fairfax  Court  House, 
and  shelled  our  trains  last  night.  We  will  fight,  or  they  will  avoid  us, 
and  strike  our  rear  first.  We  have  been  held  on  thirty-six  hours  too  long, 
and  we  are  bound  to  work  our  way  to  Alexandria.  I  only  regret  that  we 
have  not  been  distributed  to  forts,  and  to  the  fords  over  the  Potomac  into 
Maryland.     God  speed  your  operations,  and  enable  you  and  others 

IN    AUTHORITY    TO  SAVE  OUR  COUNTRY.''     (P.   233.)       His  wholc  thoughts 

were  evidently  given  to  his  country,  its  honor,  and  its  safety.  He  appre- 
hended, and  as  the  result  proved  correctly,  the  marching  of  the  enemy 
into  Maryland,  and  perhaps  further  North.  He  was  alarmed  too,  (it  was 
the  alarm  of  a  brave  and  patriotic  man,)  for  the  safety  of  the  capitol. 


32 

He  ardently  wished  to  ?,vert  both  danirors,  and  in  words  of  patriotism 
that  evidently  gushed  from  his  heart,  lie  invoked  MeClellan  to  be  on  the 
alert — to  watch  the  foe,  and  pruard  the  passes,  and  prayed  God  to  '•'  speed  " 
his  "operation,  and  enable  him,"  and  "others  in  authority  to  save  the 
country."  Alas,  for  our  good  name,  this  is  the  man  who  is  charged  with 
faithlessness  to  duty  and  treason  to  the  nation.  And  as  yet  more  dis- 
honoring to  it,  this  is  the  man  whom  a  Court  consisting  of  nine  officers, 
have  been  induced  to  find  guilty  of  the  foul  dishonoring  crime,  and  whose 
sentence  is  supported  by  the  highest  military,  legal  oiJicer,  and  in  a 
moment  of  blindness  to  justice,  the  result  of  over  confidence  in  others,  a 
sentence  which  the  President,  whose  mind  is  naturally  honest,  to  the 
prejudice  of  his  own  good  name,  without  taking  time  properly  to 
investigate  the  subject  for  himself,  promptly  approved.  But  is  criti- 
cism on  a  commander's  capacity,  or  of  his  plans  by  a  subordinate  offi- 
cer so  criminal  as  to  demand,  or  at  all  justify  dismissal  from  service 
The  wars  of  Europe  furnish  very  many  instances  to  the  contrary.  ICven 
Napoleon,  the  strictest  of  disciplinarians  as  well  as  the  greatest  military 
man  the  world  has  ever  known,  not  only  did  not  punish,  but  encouraged 
it.  He  went  farther,  he  excused  at  times  even  a  failure  to  obey  orders. 
It  is  singular  that  this  was  not  in  the  memory  of  the  Judge  Advocate, 
affluent  as  it  would  seem  to  be  with  such  learhing. 

When  Maaaena,  in  1810,  was,  against  his  wish,  placed  by  Napoleon  ia 
command  of  the  Army  of  Portugal,  and  in  sjtite  of  his  criticisms  to  Napo- 
leon himself  on  his  plan  of  campaign,  in  obedience  to  orders,  decided  to 
lay  seige  to  Ciudad  llodrigo,  overruling  in  that  respect  the  advice  of  his 
subordinates,  Junot  and  Ney,  who  recommended  an  attack  first  upon  that 
part  of  Wellington's  Army  encamped  at  Viseu,  Theirs  tells  us,  that  those 
two  officers  "spread  abroad  amongst  their  several  cor|)S,  that  it  was  Mas- 
sena,  who,  grown  old,  and  no  longer  the  same  man,  preferred  wearisome 
and  murderous  seiges  to  an  active  and  "  decisive  campaign."  (Yol.  12, 
History  of  the  Consulate  and  the  Empire,  London  edition,  p.  151.)  To 
criticise  Napoleon,  to  advise  against  his  plan  of  campaign,  was  harmless 
in  Masseua,  and  to  disparage  Massena  with  his  army,  was  harmless  in 
Junot  and  Ney.  But  for  Porter  to  question  Pope's  plans,  to  speak  des- 
pairingly of  his  strategy,  though  only  to  the  superiors  of  both,  to  evince 
for  Pope  as  a  commander,  though  only  to  the  superiors  of  both,  "con- 
temptuous and  unfriendly  feelings,"  is  not  to  be  tolerated  or  excused. 
Pope  should  have  been  held  sacred,  because  infallible,  and  Porter  con- 
demned for  questioning  it — whilst  Ney  and  Junot  and  Massena  were  pro- 
perly esteemed  guiltless,  because  Massena  and  Napoleon  possessed  no 
title  to  infallibility. 

II. — On  the  12th  of  March,  1811,  after  the  triumph  of  the  French  in  the 
battle  of  Iledinha,  Massena,  who  was  still  in  command,  implored  Ney  "to 
resist  to  the  utmost,  as  the  nature  of  the  ground  would  well  enable  him  to 


38 

do,  on  his  way  to  Condeixa."  "  Scarcely,"  says  the  same  historian,  "had 
Massena  departed,  than  Ney  began  to  watch  the  least  movements  of  the 
English,"  and,  hurried  on  by  the  fear  of  "being  isolated  from  the  main 
body  "  of  the  French  army,  "  he  disputed  but  for  a  few  moiuonts  the  heights 
of  Condeixa,  and  then  hastened  to  quit  them."  As  soon  as  Massena  heard 
of  it  he  was  indignant — "expressed  aloud  his  indignation  to  Fririon,  the 
chief  of  his  staff,  and  was  so  greatly  angered  as  to  entertain  for  a  moment 
the  idea  of  depriving  Ney  of  his  command,  and  yet  the  purpose  was  only  for 
a  moment  entertained,  and,  as  far  as  we  are  informed,  when  he  was  ac- 
quainted with  it.  Napoleon  never  entertained  it  even  for  a  moment,  or  thought 
that  it  required  him  even  to  censure  Ney.  Ney  had,  however,  clearly 
violated  a  positive  order,  and  by  doing  so,  as  the  historian  tells  us,  "for  the 
sake  of  avoiding  an  imaginary,  or,  at  most,  doubtful  danger,  he  exposed 
the  army  to  certain  peril,  (ib.  pp.  210,  211.)  How  striking  is  the  con- 
trast, even  supposing  an  intended  violation  by  Porter  of  the  order  of 
the  27th  of  August,  between  the  conduct  of  Massena  and  Napoleon  in 
Ney's  case,  and  that  of  Pope,  the  Court,  the  Judge  Advocate,  and  the 
President,  in  Porter's  case. 

III. — In  November,  1812,  when  Wellington's  whole  army  did  not 
exceed  sixty  thousand  men,  and  King  Joseph's,  Napoleon's  brother,  num- 
bered eighty-five  thousand,  and  Hill's  command,  left  by  Wellington  at 
Alba  de  Tormes,  fifteen  thousand,  the  King,  Jourdan  and  all  the  Gene- 
rals but  Soult,  advised  an  "  advance  between  the  English  Generals. 
Soult  opposed  it,  and  from  deference  to  his  authority  the  project,  which 
was  apparently  perfectly  practicable,  and  might  have  led  to  the  destruc- 
tion of  the  English  army,  was  abandoned,  and  another  plan,  advised  by 
Soult,  adopted.  And  then,  on  the  13th  of  the  same  month,  when  the 
French  crossed  the  Tormes  above  Alba,  and  advanced  as  far  as  Neustra, 
Senoi'a  de  Retiro,  the  Kiu.o;  and  Jourdan  insisted  upon  the  advisability  of 
throwing  the  French  cavalry  upon  the  English  army,  visible  on  the  right, 
Soult  objected  to  the  measure,  on  account  of  the  obscurity  of  the 
atmosphere,  &c."  "  and  the  result  was  that  when  the  eightj -five  thousand 
French  troops  were  assembled  the  English  were  already  out  of  their 
reach,  and  in  full  retreat  upon  the  Cuidad-Rodrigo  route,"  and  the  ob- 
ject of  the  campaign  thereby  lost,  (ib.  vol.  15,  pp.  73,  74.)  Soult  never- 
theless was  continued  in  command,  and  escaped,  as  far  as  we  know,  even 
censure  on  the  part  of  Napoleon.  It  cannot  be  necessary  to  multiply 
instances  from  European  armies.  There  are  two  recent  ones,  in  our  own 
army,  occurring  under  the  very  eyes  of  the  Government,  that  also  strongly 
illustrate   the  injustice  of  the  strict  rule  applied  to   Porter. 

I.  Whilst  the  Court  Martial  in  his  case  was  in  session,  and  in  the  same 
building,  a  military  inquisition,  instituted  at  the  request  of  Major  General 
3 


84 

McDowell,  of  an  extraordinary  character  was  examining  into  the  conduct 
of  that  officer,  and  with  power  to  investigate  his  whole  military  career, 
although  no  charges  of  any  kind  had  been  made  against  him  by  any  one 
in  authority.  Why  this  favor  was  shown  to  McDowell,  and  Porter  was 
held  to  rigid  and  most  technical  proof,  created  in  the  minds  of  the  ob- 
serving, great  surprise  ;  but  it  is  referred  to  in  this  connection  with  no 
view  to  censure.  In  the  course  of  that  inquisition,  it  appeared  that 
McDowell  had  received  a  positive  order  from  Pope,  (under  whose  com- 
mand he  was,)  which  he  failed  to  obey.  Instead  of  doing  so,  he  left  his 
own  troops  and  went  in  search  of  Pope,  whose  exact  locality,  however, 
he  did  not  know.  For  this  separation  from  his  own  corps,  say  the  Court 
in  his  case,  there  was  "clearly"  nothing  in  another  order  upon  which  he 
relied,  which  contained  even  an  implication  to  justify  it.  The  result  of 
his  conduct,  too,  in  that  particular,  had  proved  most  disastrous,  as 
proved  by  Pope,  whose  evidence  in  regard  to  it  was  adopted  by  the 
Court.  Upon  hearing  of  the  battle,  that  a  part  of  his  corps  had  had  that 
evening.  Pope  said :  "  I  stated  to  several  of  ray  staif  officers  who  were 
present,  that  the  game  was  in  our  own  hands,  (meaning,  if  his  order  had 
been  executed,)  that  it  was  impossible  for  Jackson  to  escape  without  very 
heavy  loss,  if  at  all." 

McDowell's  excuse,  that  he  desired  to  give  "  the  expression  of  his 
views  to  General  Pope  in  person,"  "could  be  of  no  avail  when  the  mis- 
conduct of  his  own  corps  thwarted  a  plan,  the  execution  of  which  afforded 
an  opportunity  for  speedy  victory." 

To  this  unauthorized  and  inexcusable  failure  of  McDowell,  if  it  frus- 
trated, as  Pope  says  it  did,  the  almost  certain  destruction  of  Jackson's 
command,  and  probably  its  capture,  may  with  much  more  show  of  reason 
be  attributed  the  failure  of  the  campaign,  (if  that  was  not  owing  to  the 
inherent  defect  of  the  plan  of  the  campaign  and  the  incompetency  of  the 
commander,)  than  to  any  or  all  of  the  failures,  even  were  they  established, 
alleged  against  Porter. 

He,  however,  is  cashiered,  whilst  McDov/ell  is  honora1)ly  acquitted,  and 
at  once  placed  on  important  duty,  because,  as  the  Court  in  his  case  say, 
gross  as  his  fault  was,  "grave"  as  the  "error  committed  by  him,"  (disobe- 
dience of  an  express  order,  which,  as  the  Judge  Advocate  says,  and  cites 
De  Hart  for  it,  "is  a  crime  which  the  law  has  stigmatized  as  of  the  highest 
degree,  and  against  which  is  denounced  the  extreme  punishpient  of  death,") 
"  his  subsequent  efforts,  on  the  29th,  to  repair  the  consequences  of  that  unfor- 
tunate movement  of  his  corps,  and  to  press  them  forward  into  action,  were 
earnest  and  energetic,  and  disclosed  fully  that  the  separation  of  which 
this  Court  has  stated  its  disapproval,  was  inconsiderate  and  unauthorized, 
but  was  not  induced  by  any  univorthy  motives.''^  The  italics  are  the 
Court's.  And  this  moderate  reproof,  if  reproof  it  can  be  called,  is  for  the 
violation  of  a  clear,  positive  order,  leaving  the  subordinate  no  discretion, 


35 

and  committed  upon  his  own  judgment  alone,  without  consulting,  for 
aught  that  appeared,  a  single  officer  in  his  command. 

His  conduct  "was  not  induced  by  any  unworthy  motive."  Evidenced, 
in  the  Court's  view,  by  his  course  on  the  following  day.  Had  he  con- 
fidence in  Pope  ?  Was  he  asked  ?  If  he  had  been,  who  that  knows  him, 
can  doubt  what  his  answer  would  have  been,  had  he  said  what  he  thought  ? 
The  very  fact,  that  at  such  a  moment,  he  left  his  command  in  the  hands  of 
his  own  subordinates,  to  find  Pope,  to  counsel  with  him  as  to  the  very 
order,  and  probably  to  advise  against  it,  evinces  strongly  such  want  of 
confidence.  But  his  next  day's  conduct  exempts  him  from  serious  censure, 
as  it  proved  his  "motive"  pure.  And,  besides,  adds  the  Court,  "it  feels 
itself  bound  (why,  but  because  it  was  material  to  the  inquiry)  to  report 
the  fact,  that  his  commanding  officer  (General  Pope)  not  only  omitted  to 
hold  him  culpable  for  this  separation,  but  emphatically  commended  his 
whole  conduct  while  under  his  command,  without  exception  or  qualification. " 

How  different  the  facts  and  the  course  of  the  Court  in  Porter's  case. 

I.  Before  deciding  not  to  attempt  to  execute  the  order  of  the  27th  by 
marching  at  1  A.  M.,  Porter  was  strongly  advised  against  it  by  all  of 
his  general  officers  who  were  present  when  he  received  it.  Officers,  who 
have  ever  been  above  all  suspicion  of  want  of  fidelity,  and  who  now,  and 
deservedly,  stand  high  in  Executive  favor.  On  their  almost  positive  re- 
monstrance, he  only  agreed  (they  could  persuade  him  to  no  longer  delay,) 
to  wait  till  3  A.  M.,  but  two  hours,  and  he  and  they  issued  at  once  their 
orders  accordingly  ;  and  who  also  proved  that  Bristow  Station  was  reached 
as  soon  as  if  the  march  had  been  attempted  at  one. 

II  His  conduct  on  the  bloody  field  of  the  30th,  red  with  the  blood  of 
thousands  of  his  command,  and  illustrated  by  his  usual  fearless  gallantry, 
and  greatly  diminishing  the  day's  disaster. 

III.  Not  only  the  omission  of  Pope  even  to  intimate  to  him  that  he 
was  held  culpable  for  the  alleged  disobedience  of  the  order  of  the  27th; 
but  telling  him,  as  he  almost  admits  in  his  own  evidence,  and  as  was  posi- 
tively proved  by  Colonel  Ruggles,  (hereafter  to  be  given,)  that  he  had  no 
fault  to  find ;  but,  on  the  contrary,  was  satisfied  with  his  whole  conduct, 
and  his  omission  afterwards  to  report  him  to  the  Department,  were  all,  in 
the  judgment  of  the  Court  in  his  case,  of  no  importance  whatever,  proving 
nothing  in  his  favor,  either  as  to  act  or  intent — having  not  even  a  ten- 
dency to  show  that  in  his  conduct  in  relation  to  the  order,  he  "  was  not" 
induced  by  any  unworthy  motive."  For  the  one — McDowell — facts  of 
the  same  character,  not  as  strong,  are  a  conclusive  defence  to  proved  dis- 
obedience. For  the  other — Porter — such  facts,  if  they  have  any  eflfect, 
either  come  "  too  late,"  or  prove  nothing,  or  if  anything,  prove  guilt. 


36 

Snch  is  the  strikinf^  difference  in  the  administration  of  its  jnstice,  exhib- 
ited by  the  Government  through  two  of  its  Military  Courts  towards  these 
two  officers.  The  one,  adjudged  to  be  guiltless,  and  no  doubt  properly, 
who,  from  misfortune  rather  than  want  of  skill,  had  signally  failed  not 
only  to  excite  the  admiration  and  gratitude  of  the  Republic,  but  had 
received  its  censure — the  other,  adjudged  guilty  and  cashiered,  who, 
throughout  his  career,  had  evidenced  rare  skill  and  daring  courage,  and 
in  the  public  estimation  had  won  for  himself  a  name  of  which  the  best^of 
Napoleon's  Marshals  would  have  had  reason  to  be  proud. 

How  is  this  to  be  explained,  and  the  reputation  of  the  Government  to 
pass  unharmed  ?  Can  any  reflecting,  unprejudiced  citizen  give  a  satisfac- 
tory answer  ?  And  yet,  how  priceless  to  a  "  nation  is  even-handed 
jnstice."  How  imperative  the  interest,  and  the  duty,  to  observe  and  en- 
force it. 

But  the  opinion  of  the  McDowell  Court  furnishes  another  instance  of 
duty  not  performed  in  the  same  unfortunate  campaign,  and  at  the  time 
known  by  Pope  not  to  have  been  performed,  and  also  by  the  War  De- 
partment and  the  President,  after  that  opinion  was  given — and  yet,  to 
this  day,  not  even  censured.  And  what  makes  that  instance  the  more 
striking,  is,  that  it  was  on  the  part  of  General  King,  one  of  the  members 
of  the  Court  that  convicted  and  sentenced  Porter.  The  division  of  that 
pfficer,  as  Pope  testified  before  the  McDowell  Court,  had  had  a  successful 
jfigbt  with  the  enemy,*"  who  were  retreating  from  Centreville,  on  the  night 
of  the  28th  of  August,  had  remained  masters  of  the  field  still  interpos- 
ing between  Jackson's  forces  and  the  main  body  of  the  enemy,  and  that 
the  information  was,  he  thought,  brought  to  him  by  a  staff  officer  of 
General  King."  This  filled  him,  as  it  well  might,  with  high  hopes  of  suc- 
cess, and  he  says  that  he  "immediately"  "directed  General  Kearney, 
whose  division  occupied  Centreville,  to  push  forward  cautiously  at  one 
o'clock  that  night,  in  the  direction  of  Gainesville,  to  drive  in  the  pickets  of 
the  enemy,"  etc.  "  I  directed  him,  at  the  first  blush  of  daylight,  to  attack 
the  enemy  with  his  right  advanced,  and  informed  him  that  Hooker  and 
Reno  would  be  with  him  immediately  after  daylight.  To  my  surprise 
and  dissafisf action,  I  learned  towards  daylight,  on  the  morning  of  the 
29th,  that  King's  division  had  been  withdrawn  in  the  direction  of  Manas- 
sas Junction,  leaving  open  the  road  to  Thoroughfare  Gap.  This  with- 
drawal of  that  division  made  necessary  a' great  change  in  the  movement, 
and  ivas  a  most  serious  and  unlooked  for  mistake."  McDowell,  under 
whose  command  King  was,  had  before  left  his  corps  improperly,  as  the 
Court  found.  He,  of  course,  did  not  give  King  the  order  to  withdraw. 
If  he  had,  the  Court  says,  "it  could  not  be  controverted  that  he  would 
be  justly  held  responsible  for  their  retreat,  and  the  consequent  derange- 
ments of  the  plan  of  battle  then  formed  by  General  Pope."  By  whose 
order,  then,  was  the  retreat  made  ?     By  King's.     Why  was  not  he  called 


37 

to  answer  for  it  ?  Did  he  know  that  it  was  important  to  hold  his  ground? 
Pope  says  that  he  was  "  so  impressed  with  the  necessity,  that  that  division 
(King's)  should  hold  its  ground,  that  I  sent  several  orders  to  General 
King,  (one  by  his  oivn  staff-"  officer,)  during  that  night,  to  hold  his 
ground  at  all  hazards,  and  to  prevent  the  retreat  of  the  enemy,  and  in- 
formed him  that  our  whole  force  from  the  direction  of  Centrcville  and 
Manassas  Junction  would  fall  upon  tlie  enemy  at  daylight." 

The  testimony  of  General  Pope,  in  relation  to  these  orders,  the  Court 
adopt,  "as  a  faithful  statement  of  the  facts."  Was  the  first  order,  or 
either  of  the  succeeding  ones,  known  to  or  received  by  King  ?  If  they 
were,  how  is  it  that  he  has  not  been  charged  with  disobedience  ?  If  he 
did  know  of  the  orders,  did  he  satisfy  his  before  surprised  and  dissatis- 
fied chief  that  he  had  good  grounds  for  his  disobedience,  or,  at  least, 
that  he  "  was  not  induced  by  any  unworthy  motive."  or  has  he  since  satisfied 
the  Department  ?  If  he  has,  then  disobedience  is  not  always  censurable. 
Then  "  the  Napoleonic  maxim  "  includes  ends  as  well  as  means. 

That  General  King,  who  is  known  to  be  a  patriotic  soldier,  had  good 
motives  for  his  failure,  disastrous  as  Pope  says  it  was  to  his  plans,  those 
who  are  acquainted  with  him  will  readily  believe. 

But  to  condemn  Porter  of  disobedience,  and  to  cashier  him,  in  the  face 
of  the  reasons  which  are  proved  to  have  governed  him,  the  concurrent 
and  strong  advice,  and  almost  remonstrance,  of  his  three  Generals,  and 
when  the  order  itself  afterwards  proved  to  be  useless,  and  not  only  not 
to  question  King,  but,  on  the  contrary,  to  make  him  one  of  Porter's 
judges,  and  to  continue  him  in  high  command,  is  conduct  on  the  part  of 
those  in  authority  which  no  explanation  can  justify  or  excuse. 

III.  A  yet  more  recent  case,  in  the  Army  of  the  Potomac,  illustrates 
still  stronger  the  injustice  done  to  Porter.  On  the  removal  from  its  com- 
mand, as  we  all  unfortunately  now  know  it  to  have  been,  of  General 
McClellan,  General  Buruside  was  placed  at  its  head.  The  high  character 
for  gallantry  and  patriotism  of  that  soldier  no  one  that  has  watched  his 
career  will  ever  question.  Whether  it  was  well  or  ill  advised,  his  subse- 
quent attack  on  the  enemy  at  Fredericksburg,  proved  most  disastrous.  To 
redeem  the  honor  of  his  army,  aiid  retrieve,  at  the  same  time,  his  own 
weakened  reputation,  he  resolved  on  another  attack,  and  on  a  dififerent 
plan.  This  was  at  once,  not  to  him  only,  but  to  all,  criticised  with 
severity  by  his  officers ;  and  two  of  his  Generals,  with,  as  it  was  stated,  the 
knowledge  of  others,  visited  the  President  to  protest  against  it,  and  did 
so.  The  result  was  that  the  President,  on  their  advice,  prohibited  the 
movement.  Burnside  at  once,  before  he  had  seen  the  President,  for  this 
insubordination,  issued  an  order,  subject  to  the  President's  approval,  dis- 
missing from  the  service  several  of  the  highest  officers  in  his  command, 
and  many  others,  and,  soon  after,  informed  the  President  in  person  that 


38 

his  sanctioning  the  order  was  indispensable  not  only  to  his  remaining  in 
command  of  the  Array,  but  to  his  continuing  in  the  military  service.  He 
testified,  as  the  reader  will  remember,  before  the  Committee  of  Congress 
on  the  Conduct  of  the  War,  that  the  President  told  him  that  his  order  of 
dismissal  was  right,  bat  that  before  acting  upon  it,  he  must  consult  his 
advisers,  and  that  by  persuasion  he  induced  the  witness  to  relinquish  his 
purpose  to  leave  the  service.  The  result,  and  as  it  is  to  be  supposed  of 
his  consultation  with  his  cabinet,  was  that  not  only  were  none  of  the 
officers  who  were  to  be  dismissed  by  the  order  dismissed,  but,  on  the  con- 
trary, that  General  Hooker,  one  of  the  number,  was  put  in  the  chief 
command. 

Here  again  criticisms  showing,  if  unexplained,  "  contempt "  for  the 
skill  of  a  Commander-in-Chief  may  be  so  explained  as  to  be  held  inno- 
cent, and  may  even  place,  notwithstanding  his  own  example  of  insurbordi- 
nation,  one  of  the  critics  in  the  place  of  the  chief. 

IV.  Another  sti'ong  instance  must  be  in  the  recollection  of  all. 
General  Charles  P.  Stone,  more  than  a  year  since,  for  alleged  disloy- 
alty and  insinuated  charge  of  treason,  was  taken  from  his  then  command 
and  for  many  weary  months  imprisoned  in  Fort  Lafayette.  Futile  were 
his  and  his  friends  efforts  to  ascertain  what  were  the  specific  acts  of  dis- 
loyalty, or  the  grounds  of  imputed  treason.  No  explanation  was  given 
or  could  be  obtained.  And  when  his  case  was  made  a  matter  of  inquiry 
in  the  Senate  of  the  United  States,  the  Chairman  of  the  Military  Com- 
mittee of  that  body,  who  was  also  Chairman  of  the  Committee  on  the  Con- 
duct of  the  War,  stated,  in  substance,  that  the  evidence  before  the  latter 
committee  fully  justified  the  imprisonment, — and  the  President  afterwards, 
in  replying  to  a  call  of  the  Senate,  virtually  said  the  same  thing.  But 
now  what  a  change.  No  Court  Martial  or  inquiry  was  ordered,  though 
frequently  solicited  by  Stone.  No  specification  or  other  definition  of  the 
charges  ever  given  him,  and  yet  but  the  other  day  he  was  ordered  into  ser- 
vice in  the  Army  of  the  Gulf,  and  is  now  at  the  head  of  the  command  which 
recently  so  distinguished  itself  under  the  head  of  the  gallant  Sherman. 
Porter's  case  then,  though  of  the  same  character  of  those  named,  is  the 
only  one  which,  in  the  opinion  of  the  authorities,  it  has  been  deemed 
necessary  to  inquire  into,  much  less  to  punish.  He  is  the  only  officer  who, 
upon  such  grounds,  has  been  held  unfit  for  a  service,  which  he  has  so 
adorned,  and  not  to  be  relied  upon  to  aid  the  country,  which,  during  the 
present  war,  he  has  so  signally  served  and  so  fondly  loves. 

But  to  return  to  the  evidence,  it  is  said  by  the  Judge  Advocate,  that 
neither  the  character  of  the  night,  nor  the  state  ot  the  road,  nor  the  con- 
dition of  his  command  excused  Porter,  for  his  failure  literally  to  comply 
with  the  order  to  start  at  1  A.  M. 

These  objections  will  be  considered  in  their  order. 


39 


I. — As  TO  THE  Night, 

Its  darkness  had  been  given  as  a  reason  for  not  starting  at  1  A.  M. 
The  Judge  Advocate  answers  this  as  he  does  every  part  of  the  ease  by 
giving  but  detached  and  partial  statements  of  the  evidence  of  a  few  of  the 
witnesses,  and  omitting  altogether  what  was  proved  by  those  who  were 
clearly  the  most  to  be  relied  upon.  The  parts  of  the  testimony  that  he 
does  give,  are  from  the  evidence  of  Captain  Duryea,  Major  Barstow, 
Lieutenant  Colonel  Myers,  General  Pope,  and  General  Roberts.  What 
was  proved  by  Generals  Morell,  Griffin,  Sykes,  Biitterfield,  and  Rey- 
nolds, Colonel  Cleary,  Lieutenant  Colonel  Locke,  Captains  Fifield,  an 
Monteith,  and  Lieut.  Weld,  all  present  when  the  order  wa«  received, 
or  was  being  executed,  is  not  given  at  all,  and  the  reader  will  ask  why  ? 
And  can  he  give  a  satisfactory  answer.  This  obviously  unfair  omission 
will  now  be  supplied, 

1.  Morell  says:  "It  w&s  a.  very  dark  n\ght.  It  was  cloudy,  threatening 
to  rain,  and  did  rain  before  morning."     (P.  145.) 

2.  Griffin. — "  The  night  of  the  2'7th,  and  the  morning  of  the  28th 
was  very  dark,"  I  "know  that  at  three  o'clock,  it  was  very  dark,  so  dark 
that  I  used  candles  with  my  leading  regiments  to  get  through  a  little  piece 
of  woods  which  we  left,  in  which  we  had  been  encamped."     (Pp.  160-63.) 

3.  Sykes. — "The  night  was  unusually  dark."  "Before  I  directed 
the  advance  to  be  sounded,  I  sent  an  aid-de-camp  to  find  the  road,  so  as 
to  lead  the  column  upon  it.  He  returned  in  a  short  time,  and  told  me 
that  the  darkness  was  so  great,  that  he  could  not  distinguish  the  road. 
He  also  told  me  that  he  was  assisted  in  that  search  by  several  soldiers." 
(Pp.  176,  111.) 

4.  Butterfield,  after  stating,  as  before  mentioned,  what  occurred  in 
Porter's  tent,  when  the  order  was  received,  and  Porter's  answer  to  the 
objections  of  his  Generals  to  his  marching  at  1  A.  M,  added:  "When 
we  got  outside,  the  darkness  was  so  apparent,  (to  use  such  an  expression,) 
and  it  seemed  such  a  matter  of  impossibility  to  move,  that  General  Porter 
eaid,  in  consideration  of  all  the  circumstances,  I  will  fix  the  hour  at  three 
o'clock  instead  of  one.  You  will  be  ready  to  move  promptly."  He  also 
stated  that  De  Kay,  who  was  sent  by  Pope  with  the  order,  said  "  that  it 
would  be  very  difficult  in  getting  back.  That  he  would  have  hard  work 
to  find  the  way."     (Pp.  185,  186.) 

5.  Reynolds,  (alas  now  of  our  illustrious  dead.)  "It  was  a  very 
dark  night,  as  was  the  succeeding  night,    I  recollect  both  of  them  distinctly 


40 

from  having  been  about  -a  good  deal,  until  after  12  o^clock  on  each 
night.''     (P.  169.) 

6.  deary.— ''It  was  dark,  cloudy."     (P.  121.) 

7.  Locke. — The  night  was  "  extremely  dark.''  "I  received  a  very 
severe  injury,  groping  about  in  the  darkness."    (P.  134.) 

8.  Fifield. — "  The  early  part  of  the  night  was  an  ordinary  star  light 
night  of  summer,  without  any  moon.  About  half  past  11  o'.clock,  it  com- 
menced overcasting,  and  threatened  rain.  Very  black  clouds  came  up, 
and  it  did  sprinkle  a  little.  It  was  very  dark  from  that  time  till  towards 
morning. " 

"  It  was  very  dark,"  "  everything  so  obscure  from  the  extreme  dark- 
ness of  the  night,  that  it  would  be  very  difficult  for  me  to  give  anything 
like  a  reasonable  answer,  in  regard  to  that  matter."  (The  matter  was  as 
to  the  extent  and  density  of  the  wood  along  the  road.)  He  also  said 
"  the  night  was  very  dark,  and  it  was  like  a  man  groping  his  way  in  the 
darkness,  without  being  able  to  see  his  hand  before  him,  much  of  the  way 
through  the  wood.     (Pp.  122-125.) 

This  witness  testified  also  that  he  was  on  duty  from  half  past  10  o'clock, 
the  entire  balance  of  the  night.  * 

9.  3Iontieth.—T\ie  night  was  "very  dark."     (P.  126.) 

10.  Weld. — The  night  " ivas  very  dark  indeed."     (P.  129.) 

With  all  this  evidence  before  him,  the  Judge  Advocate  advises  the 
President,  that  the  night  was  not  so  dark  before  11  o'clock,  at  least,  if  at 
any  hour  as  to  have  made  it  impossible  for  Porter,  "  to  obey  the  order," 
to  move  at  1  A.  M.,  and  that  it  was  a  noticeable  fact,  "that  the  deter- 
mination not  to  move  at  that  hour,  was  not  occasioned  by  this  extreme 
darkness,  (the  admission  that  the  darkness  was  extreme,  thus  leaked  out,) 
but  had  been  taken  before  Captain  De  Kay  laid  down,  which  was  at 
11  o'clock."  And  this  is  told  to  the  President,  though  the  Judge  Ad- 
vocate knew,  or  should  have  known,  that  General  Butterfi.eld  had  before 
testified  positively,  that  Porter,  and  that,  too,  unwillingly,  only  agreed  to 
postpone  the  time  of  marching  from  1  to  3  A.  M.,  when  he,  with  his 
Generals,  got  outside  of  his  tent  and  saw,  "the  darkness  so  apparent," 
that  it  "seemed  to  be  such  a  matter  of  impossibility  to  move."  It  was 
then,  and  not  before  that  Porter  yielded  to  the  advice  and  remonstrance 
of  his  three  Generals,  saying,  "in  consideration  of  all  the  circumstances  I 
will  fix  the  hour  at  three  o'clock,  instead  of  one."  Why  was  the  fact  repre- 
sented otherwise,  and  without  even  an  intimation,  that  there  was  proof  to 


41 

the  contrary  ?  And  especially,  why  was  the  President  not  informed  of 
this  evidence  of  Butterfield  ?  It  cannot  be  necessary  to  say  more  on  this 
head. 

II. — The  Condition  of  the  Road. 

That,  says  the  Judge  Advocate,  afforded  no  excuse  for  failing  to  march 
at  1  A.  M.  However  dark  the  night  was — whatever  may  have  been  the 
condition  of  his  men — however  worn  down  by  immediately  preceding  day 
and  night  marches — however  deprived  of  rest  and  food,  there  was  nothing 
in  the  condition  of  the  roads,  that  offered  even  an  apology  for  not  moving. 
But  to  the  fact.     What  was  the  condition  of  the  road  ? 

The  witnesses  who  were  on  the  road  that  night.  Major  Cleary  and  Cap- 
tain Fifield  proved  beyond  all  cavil,  the  existence  of  serious  obstructions. 

1.  Cleary. — "At  10  o'clock  that  night,  I  received  a  note  from  General 
Porter  to  move  the  trains  east  of  the  railroad  beyond,  and  east  of  Cedar 
Run,  towards  Bristow  Station.  I  gave  the  order  to  the  proper  persons 
connected  with  the  trains,  and  they  commenced  immediately  to  move," 
"  the  removal  of  the  trains  occupied  me  from  10  o'clock,  till  two  o'clock  in 
the  morning,  at  which  time,  or  perhaps  a  little  later,  I  myself  left  that 
point  for  Bristow  Station."  "The  road  for  some  three  miles,  I  think,  was 
occupied  by  wagons,  and  was  obstructed  so  as  to  render  it  very  difficult 
for  me  and  my  party  to  pass  along."  (P.  121.)  He  testified  also  that  his 
party  consisted  of  ten  or  twelve  persons  only,  that  he  travelled  on  horse- 
back, and  that  they  did  not  get  to  Bristow  Station  that  night. 

2.  Fifield. — He  testified  that  he  received  through  Colonel  Cleary,  an 
order  from  General  Porter  on  the  evening  of  the  2Tth  of  August,  "to 
have  the  trains  moved  from  Warrenton  Junction  down  as  far  as  possible  in 
the  neighborhood  of  Bristow  Station."  He  said  that  he  proceeded  to  exe- 
pute  it,  and  that  it  was  not  fully  effected  till  about  four  o'clock  in  the  morn- 
ing, because  it  could  not  have  been  sooner  done,  and  added,  "that  the  mov- 
ing of  the  trains  during  the  night,  would  have  prevented  the  possibility  of 
moving  troops  on  the  Railroad  track."  He  also  said,  that  between 
"three  and  four  miles"  of  the  I'oad,  (not  the  Railroad,)  was  occupied  by 
wagons,  and  in  reply  to  inquiries  of  the  Judge  Advocate,  stated,  "  I  know 
of  no  road  except  on  one  side,  (that  is  on  one  side  of  the  Railroad,)  and 
that  the  wagons  on  that,  "  were  very  much  jammed  and  remaining  sta- 
tionary. I  found  a  great  deal  of  difficulty  even  in  getting  through  them 
on  horseback."     (Pp.  122-124.) 


42 


III. — The  Condition  of  the  Troops. 

1.  Morell, — "  They  were  vey^y  much  exhausted  from  their  previous 
raarching.  They  had  marched  all  the  way  from  James  River,  except 
from  Fortress  Monroe  to  Aquia  Creek."  "They  had  marched  (labor- 
iously) and  as  fast  as  possible,"  "and  sometimes  at  night."  On  being 
told  by  Porter  of  the  order,  he  said,  that  he,  and  Sykes  and  Butterfield, 
"  immediately  spoke  of  the  condition  of  our  troops,  they  being  so  much 

fatigued,''''  as  well  as  of  "  the  darkness  of  the  night,  and  told  him  that  we 
did  not  believe  we  could  make  any  better  progress  by  attempting  to  start 
at  that  hour,  (1  A.  M.,)  than  if  we  waited  till  daylight."    (Pp.  144,  145.) 

2.  Sykes. — I  told  Porter,  on  his  informing  me  of  the  order  to  march 
at  one,  A.  M.,  my  reasons  for  his  not  attempting  it,  "  That  a  night  march 
is  always  exceedingly  fatiguing  and  injurious  to  troops.  That  my  com- 
mand had  already  marched  from  12  to  14  miles  that  day,'^  &c. 
(P.  176.) 

3.  Butterfield. — My  men  "were  very  much  fatigued.  They  had 
marched  from  Kelly's  Ford  to  Bealton,  and  from  there  up  to  Warrenton 
Junction,  almost  all  the  way  without  water,  in  the  dust.  It  was  very 
warm,  and  it  was  with  great  difficulty  that  we  got  them  along."    (P.  186.) 

No  portion  of  this  testimony  was  the  President  advised  of,  and  yet  its 
materiality  is  most  apparent.  Why  did  the  Judge  Advocate  omit  it,  in 
executing  an  order,  which  directed  him  to  report  " fully  ^^  upon  the 
bearing  of  all  the  testimony  ?  Why  select  a  part  ?  Can  these  enquiries 
possibly  be  met  satisfactorily  ?     What  fair  mind  will  say  they  can  ? 

The  darkness  of  the  night,  then,  the  state  of  the  road,  the  condition  of 
the  troops,  rendered  it,  in  the  opinion  of  his  three  Generals,  not  only  inad- 
visable, but  impossible,  to  execute  literally  as  to  time,  the  order  of  the 
21th  of  August.  Did  the  President,  when  he  approved  the  sentence, 
know  these  facts  ?  For  the  sake  of  his  own  character,  of  his  sense  of 
justice,  his  duty  to  the  country,  it  is  hoped,  and  believed,  that  he  did  not. 
Did  he  know,  could  he  have  known,  that  Porter's  decision  was  based  not 
on  his  own  experience  merely,  but,  as  proved  by  Sykes,  "  upon  the 
opinions  of  the  three  General  officers  in  his  corps  next  in  rank  to  him- 
self," (p.  176,)  and  that  each  one  of  them,  in  his  testimony  befoi-e  the 
Court,  maintained  the  same  opinion. 

Did  he  know,  that  all  concurred  in  saying  that  "nothing  whatever" 
would  have  been  gained  by  a  different  decision  ?  And,  finally,  did  he 
know,  what  they  all  also  stated,  (as  did  Pope,)  that  the  "  military  neces- 
sity for  the  movement  to  be  at  one  o'clock,  A.  M.,  on  the  28th,  so  as  to 


43 

be  at  Bristow  Station  at  daylight,  did  not  appear,  on  the  28th,"  when 
Porter's  command  reached  that  Point  ?     (P.  177.) 

Ignorance,  however,  of  these  circumstances  cannot  be  used  in  vindica- 
tion of  the  Court.  How  they  are  to  be  vindicated,  except  upon  the 
hypothesis  of  an  abtuseness  of  intellect,  the  effect  of  prejudice,  no  fair 
mind  can  imagine. 

But  in  the  march,  when  it  was  begun,  the  Judge  Advocate  says,  "  there 
was  no  haste  or  vigor  displayed,"  and  that  the  mud,  spoken  of  by  General 
Griffin,  could  not  have  been  an  obstacle  "at  such  a  season."  "It  was 
(he  adds)  in  summer,  and  a  season  of  drought,  as  appears  from  the 
clouds  of  dust  which  are  continually  brought  to  our  notice  by  the  testi- 
mony," and  that  "  he  cannot  (therefore)  be  misled,"  by  the  alleged  exist- 
ence of  mud. 

A  few  words  on  these  points  are  all  that  can  be  necessary : 

1.  The  charge  of  the  absence  of  haste  and  vigor  rests  on  the  evidence 
of  De  Kay.  On  his  statement  that  the  troops,  were  marched  "at  the 
rate  at  which  troops  would  move  if  there  was  no  necessity  for  rapid  move- 
ment," and  that,  in  his  "judgment,"  they  could  "  have  moved  much  faster 
than  they  did  in  point  of  fact." 

In  the  first  place,  the  evidence  of  this  witness,  who  was  on  Pope's 
staff,  is  to  be  taken  with  many  grains  of  allowance.  He  recollects  little 
except  what  was  thought  to  prejudice  Porter.  He  remembers  nothing  of 
what  Porter  said  to  the  attending  Generals,  except  that  he  states  Porter 
said :  "  Gentlemen,  there  is  something  for  you  to  sleep  upon,"  a  fact  posi- 
tively disproved  by  Butterfield,  and  not  stated  by  Sykes  or  Morell. 

2.  He  said,  "he  could  not  recollect  precisely''''  whether  Porter  an- 
nounced his  purpose,  either  to  obey  the  order  or  not,  a  fact  clearly  proved 
by  each  of  the  Generals. 

3.  That  he  "  was  aware  of.  the  determination  not  to  start  until  day- 
light,''  because  he  "went  to  sleep"  on  hearing  so,  when  the  Generals,  all 
of  them  say,  at  first  he  resolved  on  starting  at  once,  and  only  delayed  till 
three  through  their  earnest  advice. 

4.  He  does  not  say,  what  Butterfield  proved  he  did  say,  that  he  told 
Porter  "  it  would  be  very  difficult  in  getting  back.  That  he  would  have 
hard  work  to  find  the  way." 

But,  it  is  not  necessary  to  rely  on  these  circumstances.  As  the  fact  of 
the  asserted  want  of  haste  and  vi^or  is  positively  disproved  by  each  of 
the  Generals,  and  by  other  officers,  a  fact  also  not  disclosed  to  the  Presi- 
dent. 


44 

1.  Morell  answered  "  I  e* "  to  tliis  question:  "After  starting  at  3 
o'clock,  did  your  own  command,  and,  so  far  as  you  know,  the  rest  of  the 
corps  make  the  best  of  their  loay,  and  push  on  as  fast  as  possible 
towards  Bristow  Station?     (P.  145.) 

2.  Sykes. — "  I  led  the  advance  on  that  morning,  (the  28th,)  and  I 
continued  my  march  to  Bristow  Station,  with  the  exception  of  the  usual 
halts  which  commands  always  have  to  allow  men  to  pass  to  the  rear,  and 
the  one  that  I  spoke  of  at  the  Creek,  when  I  said,  I  found  it  necessary  to 
halt  my  command  for  some  time,  in  order  to  unite  it."     (P.  179.) 

3.  Locke. — "  They  (the  troops)  marched  as  fast  as  they  could  under  the 
circumstances,"  and  by  the  circumstances,  he  said,  he  meant  "  the  dark- 
ness of  the  night,  and  the  obstructions  of  the  road."  He  also  stated  that 
the  troops  "  were  very  much  fatigued."     (P.  134.) 

How  idle  to  disregard  all  this  concurring  proof,  and  rely  not  only  on 
the  unsupported,  but  the  contradicted  evidence  of  De  Kay.  And  how 
unfair  to  the  President,  and  to  the  public,  (the  review  was  intended  for 
both,)  and  unjust  to  Porter,  not  to  give  the  opposing  and  contradictory 
evidence. 

II.  That  the  mud  was  no  obstacle  "  to  the  onward  march  of  soldiers 
determined  to  do  their  duty."  No  evidence  was  oifered  to  prove  that 
there  was  no  mud  on  any  part  of  the  line  of  march. 

I.  The  Judge  Advocate  infers  it  "from  the  clouds  of  dust"  continually 
brought  to  our  notice  by  the  evidence.  How  illogical.  "What  rare 
simplicity.  The  weather  was  hot  and  dry.  The  parts  of  the  road  where 
there  was  no  water,  were  dusty.  There  could  not,  therefore,  be  mud, 
where  there  was  no  dust,  but  water.  Had  the  exigency  of  his  case 
required  it,  the  acute  and  learned  reviewer  would  have  maintained,  that 
as  Pennsylvania  Avenue  is  at  times  excrutiatingly  dusty,  there  cannot 
then  be  mud  in  the  marshes  of  the  Potomac. 

II.  But  the  fact  of  there  being  mud,  and  that  it  operated  to  impede 
the  march,  was  proved  expi'essly  by  Generals  Griffin  and  Butterfield. 
They  were  on  the  spot,  leading  the  march  of  their  respective  columns, 
and  it  is  rather  more  than  probable,  that  they  would  know  better  whether 
there  was  mud  in  the  route,  and  whether  it  interposed  an  obstacle  to  the 
march,  than  an  official  sitting  in  his  study,  and  evidently  bent  on  showing 
that  there  was  nothing  in  the  way  to  iaipede  "the  onward  march  of  sol- 
diers determined  to  do  their  duty." 


45 

1.  Grifin. — "I  know  that  the  artillery  which  followed  the  brigade, 
that  is,  a  carriage  or  two  of  the  artillery  which  followed  the  brigade,  got 
s.tuck  in  the  mud,  or  in  a  little  creek,  and  had  trouble  in  getting  out." 
(P.  161.) 

2.  Bullerfield. — In  answer  to  a  question  by  the  Judge  Advocate,  he 
said :  "I  know  that  after  it  had  got  to  be  about  daylight,  I  went  out  to 
the  head  of  ray  column,  and  I  found  a  difficult  place  to  cross — that  there 
was  difficulty  in  getting  the  troops  across.  I  could  see  that  it  had  been 
dark,  and  the  troops  had  been  impeded,  but  they  began  to  go  on  more 
rapidly,  as  light  broke." 

He  was  then  asked  again  by  the  Judge  Advocate  to  "  state  the  charac- 
ter of  the  difficulty — the  character  of  the  place — was  it  mud  or  water,  or 
what  was  it  ?"     And  he  answered  : 

"  It  was  viiid  and  water  both — one  of  those  streams  that  we  almost 
always  have  to  force  troops  over.  In  the  day  time  you  could  force  them 
over  very  well — but  at  night,  when  it  cannot  be  seen,  it-is  a  very  difficult 
thing  to  get  men  across  such  a  place."     (P.  187.) 

This  testimony  of  Butterfield  is  not  even  alluded  to  in  the  review. 
Then,  unless  Griffin  and  Butterfield  swear  falsely,  (for  mistake  as  to  such 
facts  was  impossible,). notwithstanding  the  hypothesis  of  the  Judge  Ad- 
vocate, resting  on  the  existence  of  dust  on  portions  of  the  road,  there 
was  mud  and  water  in  other  portions,  and  to  an  extent  interposing  ob- 
stacles "to  the  onward  march  of  soldiers  determined  to  do  their  duty." 
But,  finally,  on  this  head.  Why  is  it,  that  Porter,  alone  of  the  command 
is  accused  of  want  of  "haste  or  vigor?" 

As  Commander  of  the  entire  corps,  liis  duty  was  but  to  issue  the 
necessary  orders  to  his  division  Commanders,  for  the  march.  And  this 
they  all  say,  was  done.  It  was  their  duty  to  superintend  the  execution  of 
the  orders.  They  are  equally  responsible  for  disregard  of  duty,  as  their 
immediate  chief  He  relied,  as  he  had  a  right  to  rely,  upon  them  to 
conduct  the  marcli  with  proper  "haste"  and  "vigor."  He  had  every 
reason  for  such  reliance.  They  had  been  under  his  command,  on  many 
battle-fields.  He  had  seen  thera  in  the  midst  of  countless  perils,  ever 
foremost  in  danger,  unsurpassed  in  skill,  and  nobly  devoted  to  duty.  "To 
do  their  duty,"  he  knew  them  to  be  "soldiers  determined."  If  there  was 
any  failure,  then,  in  the  speed  of  the  march,  it  is  to  be  referred  to  them, 
and  not  to  him."  And  yet,  who  has  ever  called  their  patriotism,  or  their 
efforts  in  regard  to  it,  in  question  ?  The  Governmen-t  certainly  has  not. 
They  are  now,  and  have  been  continuously,  from  the  27th  of  August, 
1862,  in  its  service,  and  on  duty.     To  hold  Porter  responsible  for  their 


46 

alleged  misconduct,  (for  which,  however,  there  is  not  the  least  ground,) 
and  not  only  not  even  to  censure  thera,  but  to  keep  them  in  honored  com- 
mands, is  an  unequal  measure  of  justice,  that  amounts  to  a  gross  and  pal- 
pable wrong.  One  victim,  however,  was  enough.  To  have  sacrificed  to 
the  behest  of  party,  or  to  the  exigencies  of  an  ill-planned  campaign,  and 
of  an  unfortunately  selected  Commander,  Morell,  Griffin  and  Butterfield, 
would  have  been  too  glaringly  to  have  outraged  public  opinion,  and  it 
was  not  done.  But  the  very  omission  of  passing  by  these  officers,  and  visit- 
ing upon  their  immediate  chief,  the  sole  responsibility  for  the  asserted 
want  of  haste  and  vigor  in  the  march  of  the  28th  of  August,  which,  if  it 
was  true,  was  their  fault,  and  not  his,  demonstrates  the  depth  and  the 
enormity  of  the  injustice  done  to  Porter. 

Second  Specification. — First  Charge. 

II.  The  second  specification  of  the  first  charge  is,  Porter's  failure  to 
obey  the  joint  order  to  himself  and  McDowell  of  the  29th  August,  1862. 
That  order  was  as  follows  : 

"Headquarters  Army  of  Virginia, 

Centreville,  August  2dth,  1862." 

"  G-ENERALs  McDowell  and  Porter  : 

You  will  please  move  forward  with  your  joint  command  towards  Gaines- 
ville. I  sent  General  Porter  written  orders  to  that  eifect,  an  hour  and  a 
half  ago.  Heintzleman,  Sigel,  and  Reno,  are  moving  on  the  Warrenton 
turnpike,  and  must  now  be  not  far  from  Gainesville.  I  desire  that  as 
soon  as  communication  is  established  between  this  force  and  your  own, 
the  whole  command  shall  halt.  It  may  be  necessary  to  fall  back  behind 
Bull  Run  to-night.     I  presume  it  will  be  so  on  account  of  our  supplies. 

I  have  sent  no  orders  of  any  description  to  Ricketts,  and  none  to  inter- 
fere in  any  way  with  the  movement  of  General  McDowell's  troops,  except 
what  I  sent  by  his  aid-de-camp  last  night,  which  were  to  hold  his  position 
on  the  Warrenton  Pike,  until  the  troops  from  here  should  fall  on  the 
enemy's  flank  and  rear. 

I  do  not  even  know  Rickett's  position,  as  I  have  not  been  able  to  find 
out  where  General  McDowell  was  until  a  late  hour  this  morning. 

General  McDowell  will  take  immediate  steps  to  communicate  with 
General  Ricketts,  and  instruct  him  to  join  the  other  division  of  his  corps 
as  soon  as  practicable.  If  any  considerable  advantages  are  to  be  gained 
by  departing  from  this  order,  it  will  not  be  strictly  carried  out.  One 
thing  must  be  held  in  view,  that  the  troops  must  occupy  a  position,  from 
which  they  can  reach  Bull  Run  to  night,  or  by  morning.  The  indica- 
tions are  that  the  whole  force  of  the  enemy  is  moving  in  this  direction,  at 


47 

a  pace  that  will  bring  them  here  by  to-raorrow  night,  or  the  next  day. 
My  own  Headquarters  will  for  the  present  be  with  Heintzleman's  or  at 
this  place. 

JOHN   POPE, 
Major  General  Commanding.''^ 

I.  The  first  enquiry  on  this  head  is,  what,  in  one  particular,  was  the 
meaning  of  the  order  ?  Was  it  that  each  of  the  two  Generals  was  to  act 
independently  of  each  other,  or  that,  being  together  when  received,  and 
being  executed,  they  were  to  be  governed  by  the  sixty-second  Article  of 
War  ?  This,  as  will  be  seen,  is  a  material  point,  and  was  so  considered 
by  the  Judge  Advocate.  He  endeavours  to  give  it  the  former  inter- 
pretation, and  relies  for  that  purpose  mainly  on  Pope's  evidence.  Pope, 
he  says,  testified  that  his  "  intention  "  was  "  that  they  should  act  inde- 
pendently of  each  other,  and  each  in  direct  subordination  to  himself." 
(P.  306.)  But  even  with  this  assistance,  he  admits  that  the  point  is  not 
clear.  Anxious  as  he  was  to  maintain  that  construction,  he  could  not 
bring  himself  to  say,  in  its  support,  more  than  that,  "  Under  these  circum- 
stances, it  may  well  he  questioned  "  whether,  under  the  Article  of  War 
referred  to,  "  General  McDowell  could  continue  the  command  which  he 
had  assumed  over  these  joint  forces."  Here,  again,  as  throughout,  con- 
trary to  the  universal  rule,  doubt,  however  reasonable,  is  to  be  solved 
to  the  prejudice  of  Porter.  "  Full  weight,"  says  Bennet,  and  all  other 
authorities,  is  to  be  given  "  to  every  argument  or  presumption  in  favor 
of  the  prisoner."  (P.  126.)  Porter  was,  by  the  Court  and  the  Judge 
Advocate,  denied  the  benefit  of  this  rule. 

In  fact,  however,  there  is  no  room  for  doubt.  The  construction  main- 
tained by  the  Judge  Advocate  as  probable,  is  manifestly  wrong. 

II.  To  call  to  the  aid  of  that  construction  Pope's  oral  proof  before 
the  Court,  of  his  intention,  is  in  violation  of  the  best  established  rules  of 
evidence. 

The  order  must  be  its  own  interpreter.  To  construe  written  matter 
by  evidence  aliunde,  every  professional  man  knows  to  be  inadraissable. 
Nothing  but  confusion,  mistake  and  injustice  would  be  the  result  of  such 
a  course.  And  in  this  instance,  to  refer  to  Pope's  evidence,  given  months 
after  the  order,  not  made  known  to  McDowell  and  Porter  when  they 
received  it,  or  afterwards,  until  he  gave  snch  evidence,  is  as  absurd  aS  it  is 
unjust.  How  were  either  of  them  to  know  Pope's  intention,  except  as 
the  order  disclosed  it  ?  He  was  twelve  miles  away  from  them.  The 
order  was  received,  without  any  explanation  or  message  from  Pope.  His 
mind,  his  intent,  they  could  but  collect  from  the  order  itself;  and  cer- 
tainly they  could  not  foresee  that,  months  afterwards.  Pope  would 
seek  to  give  it  an  intent,  not  only  not  consentaneous  with,  but  contra- 


48 

dictory  with  its  terms.  Pope  is  presumed  to  have  known  of  the  sixty- 
second  Article  of  War.  If  by  that  article,  McDowell,  as  "the  officer 
highest  in  rank,"  would  have  the  right  to  "  command  the  whole,"  then,  at 
least,  in  the  absence  of  any  direction  from  himself  to  the  contrary.  Pope 
is  to  be  assumed  to  have  so  intended. 

The  different  view  taken  by  the  Judge  Advocate  serves  to  deprive 
Porter  of  the  defence  to  this  specification,  that  in  what  he  is  charged  to 
have  done,  or  to  have  omitted,  in  supposed  violation  of  this  order,  he 
acted   under  the  command  of  General    McDowell,  his  senior   in  rank. 

The  very  fact  that  such  a  view  is  taken  by  the  Judge  Advocate,  satis- 
factorily shows,  that  he  thought  the  opposite  one  would,  upon  the  evi- 
dence, be  a  full  answer  to  the  specification.  He  seeks  also  to  maintain 
his  interpretation  upon  the  further  ground,  that  the  article  "excludes  the 
idea  of  the  presence  of  an  officer  superior  in  rank  to  those  commanding 
the  different  corps  of  which  it  speaks."  Certainly,  it  does.  But  was 
Pope  present  when  he  gave  the  order  ?  when  it  was  received  ?  or  was 
being  executed  ?  The  Judge  Advocate  does  not  say  he  was,  but  does 
say  he  "was  absent  but  a  few  miles."  How  many  miles,  he  does  not 
inform  the  President,  or  how  many  miles  would,  in  his  opinion,  constitute 
absence  and  not  presence.  As  the  fact  in  this  connection  was  material, 
he  should  have  stated,  if  he  knew,  and  he  ought  to  have  known,  the 
evidence  being  before  him,  how  far  off  Pope  was,  that  the  President 
might  judge,  as  he  gave  no  opinion  of  his  own  to  guide  him,  whether 
such  distance  was  absence  or  not.  Pope  was  at  Gentremlle,  a  distance 
of  twelve  miles.  To  say  then  that  he  was  present  would  seem  to  be 
absurd.     The  Article  looks  to  present  and  immediate  joint  duty. 

It  was  such  duty  that  the  order  embraced.  The  two  commands 
were  to  act  together.  The  officers  were  told  to  "  move  forward  with 
your  joint  command  towards  Gainesville.  It  contemplated  its  union 
with  the  forces  of  Heintzelman,  Sigel  and  Reno,  and  thai  that  occurring, 
"the  whole  force  should  halt."  They  were  also  told,  "that  the  troops 
(that  is,  all  of  them,)  must  occupy  a  position  from  which  they  can  reach 
Bull  Bun  to-night  or  by  morning."  In  the  forward  movement  of  the  two 
corps,  who  was  to  command  ?  Who  to  give  the  order  to  halt  ?  Who  to 
decide  upon  the  position  to  be  held  to  enable  the  command  to  reach  Bull 
Kun  that  night  or  morning  ? 

The  Article  contemplates  this  very  state  of  things,  and  provides  for  it. 
"If  on  marches,"  or  doing  "duty  together,"  different  corps  of  the  army 
shall  happen  to  join,  the  officer  highest  in  rank  of  the  line  of  the  army, 
"shall  command  the  whole^  and  give  orders  for  what  is  needful  to  the 
service."  No  matter  how  the  junction  is  brought  about,  when  it  exists, 
the  Article  embraces  it,  and  establishes  a  positive  rule,  that  "  the  officer 
highest  in  rank  in  the  line  of  the  army  "  is  to  command  the  whole,  with 
the  single  exception  that  it  shall  be  "  otherwise  specially  directed  by  the 


49 

President  of  the  United  States."  To  hold  that,  under  the  circumstances 
of  this  joint  command,  what  was  to  be  done  in  executing  the  joint  order, 
was  to  be  done  by  Pope,  who  was  twelve  miles  dialant,  upon  the  tlieory 
that  he  was,  notwithstanding,  to  be  considered  present,  every  one  will  see 
is  wholly  untenable.  How  was  he  to  judge  when  to  move  the  command  ? 
when  to  halt,  or  what  position  to  take  with  a  view  to  retire  to  Bull  Ru:i 
that  night  or  the  next  morning  ?  These  two  corps  were  placed  by  the 
order  and  the  sixty-second  Article  under  the  command  of  McDowell. 
No  one  but  the  President  had  the  authority  to  take  the  command  out  cf 
the  operation  of  that  Article.  And  even  if  Pope  thought  that  he  had  the 
power,  he  did  not  attempt  to  exert  it  by  the  joint  order. 

II.  The  specification  does  not  state  in  what  particular  the  order  was 
disobeyed.     It  only  alleges  that  Porter,  "did  then  and  there  disobey." 

We  are  to  look,  then,  to  the  evidence,  and  review,  for  the  information. 
The  Guding  of  the  Court,  merely  finds  disobedience  in  fact,  without  stating 
in  what  it  consisted. 

The  President  therefore  had  no  knowledge  upon  the  point,  except  as 
he  obtained  it  from  the  Review.  That  told  him  that,  "  the  Court  con- 
cluded and  justly,  that  his,  (Porter's)  falling  back  under  the  circum- 
stances, and  for  the  purpose  mentioned  in  his  note  to  Generals  McDowell 
and  King,  was  a  violation  of  the  joint  order  to  himself  and  McDowell." 
(P.  308.) 

As  this  is  the  only  information  we  have  of  what  was  considered  by  the 
Court  disobedience,  it  would  be  sufficient  to  confine  these  remarks  to  that 
point.  But,  as  the  Judge  Advocate  has  suggested  many  things,  tending 
to  disparage  Porter  in  other  particulars,  these  will  be  first  noticed. 

I.  It  is  said,  that  when  the  two  corps  were  together,  and  the  front  of 
Porter's  column,  (his  corps  being  in  advance,)  "had  reached  some  threo 
miles  beyond  Bethlehem  Church,''''  "  General  McDowell,  then  rode  forward 
to  the  head  of  the  column  of  the  accused,  when  an  interview  and  confer- 
ence took  place  between  thera.  They  discussed  the  joint  order,  and 
General  McDowell  determined,  for  himself,  that  there  were  considera- 
ble advantages  to  be  gained  by  departing  from  it,"  and  by  moving  witi» 
his  forces  along  the  Dudley  Springs  road  towards  the  field  of  a  battle, 
then  being  fought  by  the  main  array  of  General  Pope,  at  the  distance  of 
three  or  four  miles.  His  purpose  was  to  throw  himself  on  the  enemy':} 
centre,  and  he  wished  the  accused  to  attack  his  right  flank.  He  thea 
said  to  Porter,  "  you  put  your  forces  in  here,  and  I  will  take  mine  up  the 
Dudley  Springs  road  on  the  left  of  troops  engaged  at  that  point  witii 
the  enemy."     (P.  307.) 


50 

From  this  statement,  the  reader  would  suppose  that  McDowell  con- 
sidered himself  entitled  to  direct  Porter's  movement.  The  Judge  Advo- 
cate should  at  least  be  consistent  with  himself.  If  upon  the  theory  that 
Pope  was  to  be  considered  as  present,  Porter  was  not  under  McDowell's 
command,  then  the  latter  had  no  right  to  direct  his  movements.  Of  these 
Porter  had  the  sole  control,  subject  only  to  Pope. 

If  they  were  to  "  act  independently  of  each  other,"  (and  the  Judge 
Advocate  says  they  were  to  do  so,)  and  that  such  was  Pope's  "intention," 
then  if  McDowell's  alleged  direction  to  Porter  was  given  authoritatively, 
it  was  but  intrusive.  If  on  the  contrary,  as  iji  this  part  of  his  review,  the 
Judge  Advocate  implies,  a  different  opinion  of  their  relation  towards 
each  other,  is  the  correct  one,  Porter  was  under  the  command  of  Mc- 
Dowell, then,  it  is  most  important  to  ascertain  what  order,  if  any,  was 
given  by  the  latter  to  Porter.  If  he  was  subject  to  McDowell's  command, 
(as  it  is  confidently  believed,  and  as  in  this  part  of  his  argument,  is  con- 
ceded by  the  Judge  Advocate,)  then  his  duty  in  the  execution  of  the 
joint  order  was  to  act  in  subordination  to  that  officer.  And  if  in  doing  so-, 
the  joint  order  was  disobeyed,  the  offender  was  McDowell,  not  Porter. 
Where  was  McDowell,  when  he  gave  the  order  to  Porter,  and  what  was 
that  order  ? 

I.  He  was  present  with  the  joint  command,  and  had  the  control  of  it. 
His  leaving  it  afterwards,  and  going  with  his  own  corps  to  another  part 
of  the  field,  in  no  way  impairs  the  validity  or  effect  of  bis  prior  order. 
Whatever  that  was.  Porter  was  bound  to  obey  it. 

II.  If  McDov/ell  gave  an  order,  what  was  it  ? 

The  Judge  Advocate  would  have  us  believe,  that  it  was  that  Porter 
should  attack  "  the  enemy's  right  flank," — should  put  his  "  force  in  here," 
meaning,  in  front  of  the  then  locality  of  the  two  corps.  He  does  not 
intimate  even,  that  a  word  was  uttered  by  McDowell  contrary  to  this 
alleged  order,  and  yet  the  proof  is  clear,  (McDowell  to  the  contrary, 
notwithstanding)  that  there  was  an  order,  and  not  only  that,  but  that  the 
one  alleged  was  not  given  at  all. 

1.  Lieut.  Colonel  Locke,  Chief  of  Porter's  staff,  and  his  assistant 
Adjutant  General.  He  saw  McDowell  on  the  29th,  "on  the  ground 
where  we  had  taken  up  our  position  in  the  direction  of  Gainesville, 
and  near  the  Manassas  Railroad,"  "  where  Porter  was  forming  his 
corps  in  line  of  battle."  "He  had  made  considerable  progress  in  the 
disposition  of  his  troops,  a  battery  was  in  position,  and  the  troops 
were  being  deployed.     Skirmishers  were   being  thrown  out  in  front." 


51 

On  seeing  it,  McDowell  said,  "  Porter,  you  are  out  too  fur  already,  this 
is  no  place  to  fight  a  battle."     (P.  135.) 

If  this  evidence  is  to  be  relied  upon,  (and  this  will  soon  be  examined,) 
Porter  was  preparing  for  battle.  He  was  not  then  certainly  providing 
for  "the  personal  safety  of  (himself)  and  staff,"  as  the  reviewer  most 
charitably  suggests,  was  his  motive  subsequently  in  another  asserted  move- 
ment on  the  same  day. 

2.  Captain  C.  P.  Martin,  a  Captain  in  the  third  Massachusetts  bat- 
tery, Commanding  "division  Artillery  of  General  MorelPs  division."  He 
saw  a  meeting  between  McDowell  and  Porter,  about  11  o'clock  on 
the  morning  of  the  29th,  "  on  the  road  leading  from  Manassas  Junc- 
tion to  Gainesville,"  and  "at  the  head  of  the  column,"  (Porter's.) 
Heard  McDowell  say  to  Porter :  "  Porter,  this  is  no  place  to 
FIGHT  A  BATTLE,  YOU  ARE  OUT  TOO  FAR."  Colonel  Locke,  he  Said  was 
present,  and  within  hearing  at  the  time.  Porter  "had  sent  out  skirmish- 
ers to  the  front,  and  the  troops  were  moving,  closing  up  apparently  en 
masse,  as  I  supposed,  preparing  to  form  a  line  of  battle,  which  tvas  after- 
wards done.  These  movements,  "were  continued.  The  brigade  that 
was  leading  were  being  disposed  oif,  on  the  hill  near  where  the  conversa- 
tion referred  to,  had  taken  place — one  brigade,  and  one  battery  m'oved 
off  to  the  right  shortly  after,  evidently  preparing  to  form  on  the  right  of 
the  brigade  on  the  hill.  I  went  with  the  battery  that  moved  to  the  right 
to  see  the  position.  One  battery  was  placed  where  the  conversation  was 
held,  about  that  time."     (P.  144.) 

Both  of  these  witnesses  were  unimpeached  by  evidence  as  to  character 
or  otherwise,  and  in  their  cross-examination,  the  Judge  Advocate  made 
no  attempt  to  weaken  their  testimony.  Not  a  question  was  propounded, 
suggesting  even  a  possibility  that  they  could  be  mistaken.  And  when 
McDowell  was  recalled  for  the  purpose  in  part  of  rebutting  this  evidence, 
he  was  only  asked  by  the  Judge  Advocate,  if  he  had  or  not,  "  recollection 
of  having  said  to  Porter,"  at  his  interview  with  him  on  the  29th,  (he  had 
admitted  the  fact  of  the  interview,)  what  was  sworn  to  by  Locke  and 
Martin,  and  his  answer  was,  "  I  cannot  vecoWect  precisely  what  occurred, 
or  what  conversation,  and  what  words  passed  between  us  at  that  time. 
2ii.ti»nnot  say  what  language  I  used,  or  how  it  may  have  been  unde'rstood, 
whilst  talking  on  that  point,"  (the  joint  order.)     (Pp.  217,  218.) 

He  stated  also,  that  he  thought  the  conversation  related  chiefly  to 
Pope's  joint  order.  It  is  th^n,  ))ut  a  failure  to  remember  whether  he  did 
or  not  tell  Porter  what  Locke  and  Martin  positively  testified.  Nan  me 
recordo.  In  using  this  phrase,  a  classic  one,  since  the  trial  of  England's 
former  Queen,  it  is  not  intended  to  intimate,  that  it  was  the  purpose  of 


52 

McDowell  to  conceal  wl.it  he  did  know,  but  merely  to  show  that  his  evi- 
dence rebutted  nothing,  but  merely  proved,  a  want  of  memory,  as  to  the 
fact  that  he  was  called  to  rebut.  Every  lawyer,  every  man  of  sense,  knows, 
that  such  evidence  has  not  a  feather's  weight  against  positive  proof.  In- 
telligent experience  ever  discards  it  as  wholly  unreliable.  If,  in  this  in- 
stance, influence  was  given  to  it,  it  is  but  another  proof  of  the  weak- 
ness to  which  prejudice  had  reduced  the  minds  of  the  Court. 

The  state  of  things  then  existing  at  11  A.  M.,  on  the  29th  was : 

I,  That  Porter  was  preparing  for  battle  at  the  point  where  McDowell 
and  he  met.  That  his  corps  were  all  placed  by  his  order,  or  were  being 
placed  in  position  for  that  purpose. 

II.  That  he  was  told  by  McDoAvell,  that  he  was  not  to  fight  there,  the 
place  not  being  a  proper  one  for  a  battle,  and  that  "  he  was  too  far  ad- 
vanced." McDowell  supposed  he  was  too  far  forward,  that  his  position 
was  an  unfit  one,  and  of  course  a  dangerous  one,  for  a  conflict,  and  yet  it  is 
insinuated  by  the  Judge  Advocate,  that  he  retreated  an  hour  or  two  only 
afterwards,  on  the  same  day,  for  the  degrading  and  cowardly  purpose  of 
securing  "  the  personal  safety  of  (himself)  and  staff."     (P.  308.) 

Was  ever  a  party  dealt  with  so  unjustly  ?    Could  it  have  been  thought 
possible,  that  a  gallant  officer,  who  in  the  many  battles  through  which  he 
had  passed,  was  always  in  the  front,  or  where  danger  was  greatest — de- 
voting his  energies,  and  periling  his  life  for  the  honor  and  existence  of 
his  country,  whilst  the  Judge  Advocate  was  safely  seated  in   his  office, 
where  no  danger  could  come,  or  if  it  did,  could  readily  be  escaped  from, 
would  be  arraigned  by  that  officer,  before  the  President  and  the  public, 
as  having  abandoned  his  duty,  and  cravingly  fled  from  the  foe  for  the  vile 
and  disgraceful  purpose  of  "personal  safety."     Is  all  generosity  gone? 
Is  no  magnanimity  left  ?     Is  all  gratitude  fled  ?     It  is  of  the  many  dread- 
ful evils  of  this  war,  that  suspicion  takes  the  place  of  confidence,  prejudice 
of  impartiiility,  the  darkest  passions  of  the  highest  virtues.     Porter  a 
coward  !     Let  him  who  charges  it,  go  to  the  noble  troops  he  has  so  often 
led  to  battle,  and  ask  of  them  if  the  charge  is  not  true.     He  would  soon 
be  found,  if  not  himself  wholly  regardless  of  danger,  looking  to  his  "  per- 
sonal safety."     Go  to  the  officers  who  have  been  with  him  in  battle,  and 
never  saw  his  eye  dimmed,  except  when  he  discovered  his  comrades  wounded 
and  dying  around  him,  and  see  with  what  surprise  and  scorn  the  charge 
would  be  received.     Go  to  the  troops  and  the  officers  constituting  his 
corps  on  the  29th,  and  listen  to  the  contempt  with  which  the  imputation 
would  be  regarded. .    The  enlightened  public  will  never  sanction  such  an 
accusation  by  whom  soever  made.     They  are  ever  grateful  to  such  a 
public  servant  as  they  know  Porter  to  have  been.     Individuals  may  be 
found  wanting  in  that  virtue.     But  such  a  public,  never.     Ingratitude, 


53 

that  "  crime  of  deeper  die  than  all  the   guilt}'  train  of  human  vices,"  is 
never  found  in  them. 

III.  Conceding,  however,  that  the  joint  order  did  not  direct  an  attack 
on  the  enemy  at  that  point,  or  elsewhere,  on  that  day,  and  that  McDowell 
gave  Porter  no  such  order,  or  if  lie  did,  that  it  was  without  authority, 
the  Judge  Advocate  says,  "  it  would  seem  to  have  been  a  manifest  viola- 
tion of  the  duty  resting  on  Porter  in  the  position  in  which  he  was  then 
placed,  without  reference  to  any  specific  order  or  direction,  leading  or 
directing  him  to  engage  the  enemy,"  not  to  have  done  so.     (P.   308.) 

I.  It  would  be  a  conclusive  reply  to  this  view  that  the  specification 
charges  only  disobedience  of  the  joint  order  of  the  29th.  If  it  was  the 
purpose  of  the  Judge  Advocate  to  rely  on  any  such  general  military  duty, 
as  is  here  stated,  fairness,  as  well  as  the  laws  oi  military  pleading,  re- 
quired that  it  should  have  been  alleged.  To  specify  a  particular  offence, 
and  on  the  trial  rely  upon  another  and  totally  different  one,  is  as  repug- 
nant to  justice  as  to  every  legal  principle.  Hov/^  is  the  accused  to  pre- 
pare for  his  defence  ;  to  know  what  witnesses  to  summon  ?  or  what  proof 
he  is  to  meet  ?  It  is  impossible  that  the  law  in  this  respect  can  be  un- 
known to  the  Jadge  Advocate.  A  long  abandonment  of  the  profession, 
which  he  for  years  so  greatly  adorned,  may  have  had  its  usual  result,  the 
making  him  somewhat  rusty  in  some  branches  of  the  science.  But  this 
rule  of  pleading,  and  evidence,  is  so  familiar,  and  so  challenges  the 'assent 
of  every  sensible  mind,  that  he  could  not  have  forgotten  it.  Why  then 
rely  on  a  charge  not  stated  in  the  specification?  Why  present  it  to  the 
President  as  one  of  the  reasons  for  his  approving  the  finding  on  the 
actual  specification?  Can  it  be  accounted  for  except  because  he  waa 
satisfied,  or  apprehended  the  President  would  be  satisfied  that  the  offence 
specified  was  not  established  by  the  evidence  ?  Did  he  urge  the  same 
view  upon  the  Court  ?  Did  the  Court  adopt  it,  or  itself  take  it  ?  If  so, 
both  he,  and  the  Court,  offended  against  the  law,  and  committed  a  legal 
outrage  upon  Porter.  The  same  observations  are  applicable  to  the  fur- 
ther view  of  the  Judge  Advocate,  that  Porter  on  the  same  day  violated 
an  "elementary  principle,"  "that  in  the  absence  of  positive  restraining 
orders,  the  march  shall  always  be  towards  the  sound  of  the  guns.  (lb.) 
That  is  not  the  offence  specified.  Nothing  can  be  clearer  than  this. 
But,  waiving  this  objection,  conclusive  ^s  it  is,  what  foundation  in  fact  is 
there  for  either  of  these  charges. 

II.  The  ground  of  the  first,  is  said  to  be,  that  the  officer  is  bound  to 
hold  his  column  so,  "in  the  advance,  as  to  be  ready  to  afford  mutual 
assistance  in  time  of  need."  (lb.)  Need,  then,  is  to  exist,  to  make  the 
principle  applicable.     Who  is  to  judge  of  it?     The  officer  in  command  of 


54 

the  column.  If  he  judges  erroneously,  it  is  no  offence,  provided  he  does 
so  honestly.  Those  who  know  Porter  require  no  proof  to  convince  them 
that,  unless  prohibited  by  "  restraining  orders,"  he  would  ever  assist  his 
brother  soldiers  in  time  of  need.  Did  he  believe  it  was  wanted  in  this  in- 
Ktance  ?  The  columns  supposed  to  have  required  his  aid,  were  not  in  his 
sight,  but  several  miles  off.  Nor  could  he  leave  his  own  command  to 
ascertain  their  condition,  or  the  desire  of  their  immediate  officers,  or  of  the 
Commander-in-Chief.  McDowell,  leaving  his  column  under  the  same  cir- 
cumstances, to  consult  Pope,  the  Court  in  his  case  adjudged  committed  a 
clear  offence,  and  only  omitted  to  punish  for  it  from  an  impression  that  his 
motives  were  innocent.  Porter  remained,  as  he  should,  with  his  troops,  and 
sent  one  of  his  aids.  Lieutenant  Weld,  to  Pope.  That  officer  states,  "  about 
four  o'clock  on  the  afternoon  of  the  29th,"  he  started  on  his  errand.  He 
bore  a  written  and  verbal  message  to  Pope  from  Porter.  The  latter  was 
"to  the  effect  that  Gei^eral  Morell  would  now  be  strongly  engaged ;  that 
there  was  a  large  force  in  front  of  us."  The  glance  that  he  had  of  the 
written  one  showed  him,  he  said,  that  it  was  to  the  same  purport,  "but 
much  more  minutely,  with  details," — v.'hatthey  were,  he  did  not  remember. 
He  found  Pope,  "  and  delivered  the  messages  to  him,  both  written  and  ver- 
bal," and  asked  if  there  was  an  answer.  Pope  told  him,  "tell  General 
Porter  we  are  having  a  hard  fight,"  and  said,  that  "  was  all  he  ha|d  to 
send  to  General  Porter."  The  witness  wrote  this  down,  and  afterwards 
delivered  it  in  person  to  Porter.  He  further  stated,  that  on  the  way  to 
Pope  he  "saw  General  Hatch,"  who  w^as  in  command  of  King's  divi- 
sion, that  officer,  as  Hatch  said,  being  sick,  and  not  present.  That  he 
gave  Hatch  both  of  the  messages,  as  Porter  had  authorized,  and  asked 
him  for  an  answer,  and  was  told,  "tell  General  Porter  that  we  have 
wliipped  the  enemy,  and  are  driving  them,"  but  soon  added,  don't  deliver 
that  answer,  but  this,  "tell  General  Porter,  we  have  driven  the  enemy  in 
the  woods."  (P.  129.)  This  also  was  delivered  to  Porter.  With  these 
facts  in  his  possession,  on  what  ground  could  Porter  have  supposed  that 
Pope  needed  on  his  battle  ground  Porter's  column  ? 

Who  was  best  able  to  judge  ?  Pope,  who  was  on  the  site  of  the  battle, 
and  in  command  of  all  the  forces  engaged,  or  Porter,  who  was  several 
miles  distant  ?  Had  Porter  not  a  right  to  consider  that  if  his  assistance 
was  needed,  a  request,  or  order  to  that  effect,  would  have  been  sent  by 
Pope,  in  reply  to  his  written  and  verbal  messages  by  Weld.  Pope  had 
the  right  to  demand  his  assistance.  But  he  not  only  failed  to  do  this, 
but  even  to  intimate  that  he  desired  it.  If  the  assistance  was  needed, 
and  not  asked,  (and  it  is  clear  that  it  was  not,)  then  one  of  these  con- 
clusions follow  : 

I,  Either  Pope  designedly  failed  in  his  duty,  or  II,  had  not  the  intel- 
Jlgence  to  know,  (though  on  the  spot,)  that  Porter's  corps  was  needed. 


55 

But,  he  is  not  blamed  by  the  Judge  Advocate.  On  the  contrary,  (how- 
ever it  may  excite  surprise,  or  cause  a  smile  with  those  who  remember 
the  disorganized  army  that  fell  back  upon  the  Washington  defences,  and 
its  crest  fallen  chief,)  he  tells  us,  "that  it  cannot  be  improper  to  add,  what 
the  Record  will  sustain  me  in  saying,  that  so  far  as  light  is  shed  upon  the 
subject  by  the  testimony,  the  Army  of  Virginia  appears  to  have  nobly 
performed  the  arduous  and  perilous  work  committed  to  its  hands.  Its 
campaign  was  brief,  but  marked  by  signal  vigor  and  ability,  and  animated 
by  a  spirit  which,  shriking  from  neither  toil  nor  exposure,  nor  danger, 
bravely  struck  the  enemy  whenever  and, wherever  he  could  be  found." 
(P.  316.)  The  only  v;ay  to  account  for  so  singular  an  opinion,  is  by  sup- 
posing that  the  Judge  Advocate  closed  his  eyes  to  all  the  evidence  in  the 
Record,  except  that  of  Pope,  Roberts  and  Smith,  (a  fault  belonging  to 
the  whole  of  his  review,)  and  also  by  supposing,  that  the  universal  voice 
of  the  public  upon  the  campaign,  which  literally  filled  the  land,  never 
found  its  way  within  the  walls  of  his  office.  But  it  is  strange,  that  when 
he  was  penning  this  eulogium  and  lauding,  "  the  signal  vigor  and  ability 
of  Pope,"  it  did  not  occur  to  him,  that  it  v,^as  possible  the  people  would 
find  in  the  fact,  that  when  the  President  discovered  the  Capitol  in  immi- 
nent peril,  he  at  once  relieved  the  so  much  lauded  chief,  and  about 
the  2d  of  September,  placed  the  army  under  the  command  of  Major  Gen- 
eral McClellan,  and  on  the  6th  of  the  same  month  gave  to  Porter  the 
command  of  eighteen  thousand  men  to  guard  the  most  important  portion 
of  the  intrenchments  around  the  city,  and  continued  him  in  that  position 
until  the  12th,  when  he  ordered  him  to  the  command  of  his  former  corps, 
to  which  a  new  division  was  attached,  in  the  army,  with  which  McClellan, 
to  his  great  honor  and  to  the  incalculable  advantage  of  the  country,  and  the 
safety  of  the  Capitol  and  the  Executive,  fought  the  battles  of  South  Moun- 
tain and  Antietam — conclusive  evidence  that  the  President  did  not  then 
share  in  the  confidence  of  the  Judge  Advocate  in  Pope,  or  in  the  truth  of 
his  eulogium,  or  participate  in  his  present  detraction  of  Porter. 

II.  But  as  the  joint  order,  for  the  reasons  already  assigned,  as  long  as 
McDowell  and  Porter  were  together,  placed  the  command  of  their  united 
forces  in  McDowell,  his  order  v/as  conclusive  on  Porter.  To  have  dis- 
obeyed it  would  have  been  a  high  military  offence.  Did  McDowell  give 
an  order,  and  what  was  it?  The  facts  that  he  gave  one,  and  what  the 
order  was,  are  conclusively  proved  by  the  evidence  of  Locke  and  Martin, 
before  referred  to,  and  which  was  not  at  all  weakened  much  less  rebutted 
by  that  of  McDowell. 

III.  Porter's  "falling  back,"  the  Judge  Advocate  says,  was  the 
ground  on  which  the  Court  decided  that  there  "  was  a  violation  of  the 
joint  order."     (P.  308.) 


56 

I,  Tho  only  proof  urged  to  sustain  the  fact  that  there  was  a  falling  hack 
is  a  note  (which  will  be  given  hereafter,)  of  Porter  to  McDowell  and 
King,  without  date,  bat  no  doubt  written  and  sent  on  the  29th,  after 
those  officers  had  left  Porter's  corps.  At  this  time,  Porter  was,  as  before 
stated,  authorized  to  judge  for  himself.  That  this  was  his  right,  Mc^ 
Dowell  having  then  separated  from  him,  the  Judge  Advoeate  nowhere 
contests.  On  the  contrary,  he  admits  that  McDowell  then  ceased  to  have 
any  rightful  authority  over  Porter,  and  that  he  (Porter)  was  "left  un- 
trammelled "  and  empowered  to  decide  for  himself  what  was  to  be  done 
under  the  joint  order.  (P.  SOY.)  He  not  only  makes  this  concession, 
but  in  another  part  of  his  review,  as  has  been  seen,  he  goes  farther  and 
maintains,  that  even  McDov/ell  present.  Porter  had  the  right,  under  the 
order,  to  act  independently  of  him.  In  this  latter  opinion  he  is  certainly 
mistaken,  but  in  the  other,  clearly  right.  The  order  told  Porter  that  "  it 
may  be  necessary  to  fall  back  behind  Bull  Hun  at  Centreville  to-night," 
and  that,  "  one  thing  must  be  held  in  view,  that  the  troops  must  occupy 
a  position  from  which  they  can  reach  Bull  Run  to-night,  or  by  morning," 
"  and  that  if  any  considerable  advantages  are  to  be  gained  by  departing 
from  this  order,  it  will  not  be  strictly  carried  out."  The  pov/er,  therefore, 
to  Judge  whether  departing  from  the  order  would  produce  "  any  con- 
siderable advantages  "  was  given  to  Porter  exclusively.  He  had  the  right 
to  decide  on  that  as  fully  as  Pope  himself  would  have  had  if  personally 
present.  Error  in  judging  of  it  is  no  offence  if  committed  honestly.  The 
power,  however,  was  made  subject  to  this  positive  limitation,  that  it  was 
not  to  be  exercised  so  as  to  place  his  troops  in  a  position  from  which  they 
might  not  be  able  to  "reach  Bull  Run  that  night  or  by  morning."  Every 
thing  to  be  done  was  to  be  in  subordin;ition  to  that  object.  If  to  march 
ill  a  different  direction,  or  to  attack  the  enemy,  or  to  do  anything  else, 
vfould  probably  hazard  that  end,  it  was  not  to  be  done.  And  who  was 
to  decide  this?  Porter.  Had  he  acted  without  regard  to  that  primary 
purpose,  and  by  doing  so  had  frustrated  it,  he  would  have  violated  the 
order,  and  been  justly  liable  to  punishment.  Now,  what  evidence  is  there 
that  in  anything  he  did,  after  McDowell  left  him,  Porter  did  not  decide 
honestly  ?  His  Generals  and  several  of  his  other  officers  were  examined, 
and  they  exculpated  him  in  this,  as  indeed  they  did  in  regard  to  all  the 
charges.  Nor,  as  to  this,  did  the  Judge  Advocate  attempt  to  prove  the 
contrary  by  any  one  of  them. 

If,  therefore,  Porter  had  in  fact  fallen  "  back,"  he  was  empowered  to 
do  so  if  he  really  judged  it  expedient,  looking  to  the  positive  injunction, 
as  to  Bull  Run,  or  to  "  advantages  "  that  he  thought  would  result  from 
it.  This  proposition,  however,  is  not  necessary  to  his  vindication.  For 
there  is  not  only  no  proof  that  he  did  fall  back,  but  positive  proof 
that  he  did  not,  "Falling  back,"  as  the  Judge  Advocate  uses  the  term:'^ 
means  retreat     Did  his  troops  fall  back  or  retreat  on  the  29tk     There 


57 

is  not  a  scinctilla  of  evidence  of  it;  nor  does  the  Jndgo  Advocate  offer 
any  evidence  of  any  fact  tiiat  even  tends  to  establish  it.  He  not  only 
substitutes  surmise  for  proof,  but,  in  favor  of  surmise,  he  rejects  positive 
and  uncontradicted  proof.  • 

The  proof  is  this  : 

1.  Morell. — He  stated  that  he  received  an  order  from  Porter,  written 
in  pencil,  a  little  before  sun  set  on  that  evening,  and  soon  after,  through 
Colonelt Locke,  a  verbal  message  to  the  same  effect,  directing  him  "to 
make  dispositions  to  attack  the  enemy,"  and  that  he  did  so.  That  the 
order  was  afterwards  countermanded,  because  of  the  lateness  of  the  hour, 
as  suggested  by  him,  and  he  added,  "I  was  directed  to  remain  where  I 
was  during  the  night."  That  he  made  his  dispositions  accordingly,  des- 
cribing them,  and  said,  "in  that  way  we  passed  the  night."  (Pp.  146, 
147.) 

The  written  order  was  produced,  on  the  cross-examination  of  the  Judge 
Advocate,  and  was  as  follows  : 

"  General  Morell, — I  wish  you  to  push  up  two  regiments,  supported  by 
two  others,  preceded  by  skirmishers ;  the  regiments  at  intervals  of  two 
hundred  yards,  and  attack  the  party  with  a  section  of  a  battery,  opposed 
to  you.  The  battle  works  well  on  our  right,  and  the  enemy  are  said  to 
be  retiring  up  the  pike.  Give  the  enemy  a  good  shelling  when  our  troops 
advance. 

"P.  J.   PORTER, 

Major  General  Gomm." 
» 

What  conclusive  proof  this,  that  Porter,  on  that  day,  was  thinking  of 
"the  personal  safety  of  (himself)  and  staff?"  It  is  commended  as  such 
to  the  special  meditation  of  the  charitable  Judge  Advocate.  Tlie  witness 
further  stated  :  "  I  received  from  G-eneral  Porter  an  order  to  remain  all 
night  where  I  was,"  in  line  of  battle,  immediately  in  front  of  the  enemy, 
and  did  so. 

2.  BuUerfield,  Sykes,  Locke  and  B.  F.  Smith,  proved  that  tl^e 
troops  remained  in  their  position  in  front  of  the  encTiy,  all  the  night  of 
the  29//i.  Locke,  said  that  they  continued  there  "  until  the  next  morn- 
ing at  daylight,"  and  to  the  question,  "  was  there  any  retreat  at  all,  an- 
swered wo."  (P.  195.)  Smith,  a  witness  of  the  Government,  examined 
by  the  Judge  Advocate,  and  whose  evidence  he  fully  relied  upon  for  an- 
other purpose,  was  asked  by  him.  "  Was  ihere  or  not  any  such  display 
of  the  enemy's  forces  as  to  make  it  necessary,  in  your  judgment,  to  retreat 
before  them  ?  And  answered,  "  I  had  no  means  of  knowing.  When  we 
moved  back  from  that  position  I  supposed  it  was  for  some  proper  cause, 


58 

but  I  did  not  understand  at  all  what  the  cause  was.  I  did  not  receive 
any  impression  that  we  were  retreating  from  the  enemy.  I  supposed 
that  we  were  making  a  reconnoissance  to  feel  the  enemy  in  that  direc- 
tion, and,  iiaving  found  him,  that  we  had  moved  back  for  some  other 
purpose ;  aud,  not  knowing  about  the  orders  to  the  general,  I  remained 
under  that  impression.  (P.  113)  Is  it  not  then  passing  strange,  that 
with  this  clear  proof,  the  Court  should,  as  the  Judge  Advocate  says  they 
did,  "  and  justly,"  have  found  that  Porter  did  fall  back,  did  retreat  on 
that  evening,  and  in  that  way,  (the  only  one  suggested)  violated  the 
joint  order  ?  It  can  but  be  accounted  for  as  other  gross  errors  can  only 
be  by  assuming  the  existence  from  sovie  cause  aZunicZe  of  judicial,  and 
official  blindness.  The  only  ground  relied  upon  by  the  Judge  Advocate, 
is  the  following  note,  heretofore  referred  to,  from  Porter  to  McDowell 
and  King. 

"  Generals  McDowell  and  King  :  I  found  it  impossible  to  communi- 
cate by  crossing  the  roads  to  Groveton.  The  enemy  are  in  strong  force 
on  this  road,  and  as  they  appear  to  have  driven  our  forces  back,  the  firing 
of  the  enemy  having  advanced  and  ours  retired,  I  have  determined  to 
withdraw  to  Manassas.  I  have  attempted  to  communicate  with  McDowell 
and  Sigel,  but  my  messengers  have  run  into  the  enemy.  They  have 
gathered  artillery  and  cavalry  aud  infantry,  and  the  advancing  masses  of 
dust  show  the  enemy  coming  in  force.  I  am  now  going  to  the  head  of 
the  column  to  see  what  is  passing  and  how  affairs  are  going.  Had  you 
not  better  send  your  train  back  ?     I  will  communicate  with  you. 

"F.  J.  PORTER, 

Major  General." 

Waiving  for  the  present,  what  however  is  most  obvious,  that  if  Porter 
had  withdrawn  to  Manassas,  (his  purpose  when  this  note  was  written,) 
the  movement  would  have  been  within  the  discretion  vested  in  him  by  the 
joint  order,  yet  as  the  evidence  is  clear,  that  he  did  not  so  withdraw,  hut 
on  the  contrary,  continued  where  he  was  iyi  front  of  the  enemy,  when  the 
note  was  v/ritten,  and  until  the  morning  to  the  30th,  and  then  only  marched 
under  a  positive  order  from  Pope,  he  could  have  been  found  guilty  of 
falling  back  or  retreating  upon  the  29th,  only  upon  the  hypothesis,  that  an 
unexecuted  purpose,  is  the  exact  equivalent  of  an  executed  one.  In 
the  view  of  ordinary  minds,  to  do  is  one  thing,  and  to  intend  to  do,  an- 
other— but  with  this  Court  and  Judge  Advocate,  they  are  in  fact  aud 
in  law,  identical,  and  Porter  has  been  adjudged  guilty  of  disobedience, 
not  because  he  did  disobey,  but  because  he,  for  a  moment,  contemplated 
disobedience.  There  is  no  better  way  of  meeting  such  reasoning  than  to 
state  it.     Like  all  palpable  follies  it  answers  itself. 


59 

The  Judge  Advocate  asserts,  however,  that  the  purpose  to  "retreat," 
"most  euergetically,"  as  he  says  announced  in  the  note,  "vk^as  promptly 
carried  out  substantially,  if  not  to  the  letter,  because  at  between  five  and 
six  o'clock,  the  accused  was  found  at  or  near  Bethlehem  Church,  sur- 
rounded by  his  troops,  whose  arms  were  stacked."  (P.  308.)  He  omits 
however,  to  inform  the  President,  or  even  to  allude  to  it,  that  the  greater 
part  of  his  troops,  Morell's  division,  as  proved  by  Morell  himself,  remained 
during  the  night — and  by  Porter's  order,  where  McDowell  left  them,  in 
the  immediate  front  of  the  enemy,  and  in  line  of  battle  prepared  either 
to  repel  or  attack  as  the  occurences  of  the  night  might  require.  That 
all  the  troops  where  not  there,  upon  the  point  in  question,  proves 
nothing.  The  Judge  Advocate  would  seem  to  think  that  there  was  a 
retreat,  if  the  whole  corps  vras  not  retained  at  the  spot — placed  in  solid 
column,  standing  erect,  and  with  arms  at  the  shoulder.  But  this  is  mere 
fancy.  What  witness  proved  a  retreat  in  a  military  sense  ?  Not  one, 
whilst  Morell,  Locke  and  B.  F.  Smith,  testified  that  there  was  no  retreat, 
in  fact,  and  no  order  given  for  one.  Here  again  hypothesis  is  made  to  do 
more  than  take  the  place  of  proof — it  is  used  to  supplant  it.  The  Judge 
Advocate,  conscious  that  the  order  from  McDowell  to  Porter  of  the  29th, 
which  Colonel  Locke  positively  swears  he  received  and  delivered  that  after- 
noon, would  be  a  full  justification  for  Porter's  not  attacking  the  enemy,  as- 
sails the  witness.  This  he  does,  not  by  calling  witnesses  to  impeach  his 
character  for  veracity,  or  in  any  other  respect,  but  by  proving  I,  by  Mc- 
Dowell, that  he  did  not  recollect  giving  the  order,  II,  by  King,  that  he  was 
not  with  McDowell  (as  Locke  had  said  he  was,)  when  McDowell  as  dated 
by  Locke,  gave  the  order.  The  reviewer  says,  that  McDowell  "declared 
that  none  such  was  scut  by  him."  This  is  not  so.  He  made  no  such 
statement — on  the  contrary  he  studiously  avoided  doing  so.  He  but  pro- 
fessed not  to  recollect  having  given  it.  King's  evidence  was  to  the  same 
efi"ect.  He  was  only  asked  by  the  Judge  Advocate  if  he  remembered 
being  with  McDowell  about  the  time  when  Locke  testified  he  received 
the  order,  and  said  that  he  did  not.  And  to  another  question  he  an- 
swered, that  he  did  not  remember  hearing  McDowell  give  any  such  order 
that  day.  In  his  case  then  as  in  McDowell's,  there  existed  but  a  want 
of  recollection.  Is  this  to  destroy  the  evidence  of  a  witness  not  otherwise 
impeached,  who  swears  that  the  order  was  given  ?  As  far  as  there 
is  proof,  and  as  those  who  are  acquianted  with  the  parties,  know  to  be 
the  fact,  Locke's  character  for  veracity  is  as  perfect  as  that  of  McDowell's 
or  King's.  Why  then  is  his  truth  assailed,  and  there  being  mistaken 
even,  treated  as  impossible.  King  admitted  that  he  was  sick  on  that  day, 
and  although  he  did  not  state  what  his  desease  was,  yet,  as  he  said,  he 
was  too  sick  to  take  part  in  the  battle  of  the  succeeding  day,  and  was 
forced  to  leave  his  division  to  be  led  by  Hatch,  as  his  loyalty  and  gal- 
lantry are  beyond  all  question,  his  sickness  must  have  been  severe.     Cer- 


60 

tain  diseases  we  all  know,  (and  King's  may  have  been  of  that  kind,) 
produce  listlessness  and  impair  memory.  And  yet  on  this  negative,  and 
wholly  unreliable  evidence,  it  is  maintained  by  the  Jud^e  Advocate,  that 
no  such  order  was  given,  and  that  Locke,  the  equal  in  virtue  of  McDowell 
and  King,  willfully  swore  false. 

Mistake  as  to  the  fact  to  which  he  testified  was  impossible.  If  the 
order  was  not  delivered  by  McDowell  to  Locke,  then  the  latter  knew  it, 
and  his  testimony  was  designedly  untrue.  But,  whether  the  order  was 
in  fact  sent  by  McDowell,  Locke  positively  swears  he  delivered  it  to 
Portrr  as  coming  from  McDowell.  No  one  contradicts  this  either  posi- 
tively or  negatively.  To  receive  it  as  true,  therefore,  would  seem  to  be 
unavoidable,  but  it  is  not  so  with  the  Judge  Advocate.  He  assumes 
without  charging  it  designed  falsehood  on  the  part  of  Locke  in  his  state- 
ment that  the  order  was  sent  by  McDowell,  and  then  maintains  that  the 
other  fact  proved  by  him,  the  delivery  of  such  an  order  to  Porter,  is  to  be 
rejected  as  untrue  on  the  authority  of  the  maxim,  which  according  to  his 
reading  is  "falsum  inuno,  falsum  in  omnibus,^'  (it  should  be  falsusin 
uno,  falsus  in  omnibus,'^)  Desirous,  however,  as  he  evidently  was  to  im- 
peach the  credibility  of  Locke,  he  could  not  bring  himself  to  charge  him  with 
willful  falsehood.  And,  yet  the  maxim  has  no  application  to  any  other. 
And  it  applies  there,  because  in  such  a  case,  the  very  ground"  on  which 
credit  is  given  to  human  testimony  fails.  You  cannot  be  certain  in  such  a 
case  whether  there  is  truth  in  any  part  of  the  witness'  evidence.  "Having 
(says  the  Judge  Advocate,)  been  discredited  as  laboring  under  a  complete 
minapprehension  in  regard  «to  the  first,  (the  receiving  the  order  from 
McDowell,)  this  discredit  necessarily  attaches  to  the  second,  (the  delivery 
of  such  an  order  to  Porter,)  and  under  the  maxim  quoted,  his  entire 
statement  falls  to  the  ground."     (P.  314.) 

Mistake — "  misapprehension,"  as  to  one  fact,  the  Judge  Advocate  as- 
serts— taints  the  whole  evidence  of  the  witness,  and  demands  its  rejection. 
It  establishes  therefore  in  the  sense  of  the  maxim,  according  to  his  under- 
standing of  it,  falsehood.  If  this  was  its  true  construction,  in  how  many 
cases  could  testimony  be  of  any  avail.  What  witness  but  proves  at  times 
to  be  mistaken,  or  to  misapprehend  some  of  the  facts  to  which  he  testifies  ? 
Human  memory  often  honestly  fails — is  human  testimony  on  that  ac- 
count to  be  rejected?  But  if  misapprehension  as  to  a  fact  legally  and 
morally  discredits  every  other  portion  of  the  evidence  of  a  witness,  for  the 
same  reason  the  misapprehension  of  the  meaning  of  a  legal  maxim, 
would  deny  to  him  who  entertains  it  any  legal  knowledge.  The  mis- 
apprehension of  the  meaning  of  the  maxim  quoted  by  the  Judge  Advo- 
cate, every  student  will  see  is  clear  beyond  all  doubt.  Its  meaning  is 
stated  with  his  accustomed  perspicuity  by  Mr.  Justice  Story,  in  the  case 
of  the,  Santissima,  7  Wheat,  338.  "  Where  a  party  speaks  to  a  fact  in  re- 
spect to  which  he  cannot  be  presumed  liable  to  mistake,  as  in  relation  to 


61 

the  country  of  liis  birth,  or  his  being  in  a  vessel  on  a  particular  voyage, 
or  living  in  a  particular  place,  it  is  extremely  difficult  to  exempt  him  from 
the  charge  of  deliberate  falsehood;  and  Courts  of  Justice,  under  such 
circumstances  are  bound  upon  principles  of  law  and  morality,  and  Jus- 
tice, to  apply  the  maxim  falsus  in  uno,  falsus  in  ominibus.  What  ground 
of  judicial  belief  can  there  be  left,  when  the  party  has  shown  such  gross 
insensibility  to  the  difference  between  right  and  wrong,  between  truth 
and  falsehood."  But  yet  how  unfair  it  would  be  to  deny  to  the  Judge 
Advocate  even  very  distinguished  legal  attainments.  He  so  wished  to 
get  rid  of  the  fact  fatal  to  his  immediate  purpose,  the  approval  of  the 
sentence  against  Porter,  that  he  was  oblivious  for  a  moment  of  the  true 
sense  of  the  maxim  or  of  the  moral  principle  on  which  it  rests. 

It  is  unaccountable  also  why  the  Judge  Advocate  did  not  call  the  Pre- 
sident's attention  to  the  positive  statement  by  Porter  in  his  defence,  that 
Locke  delivered  the  order  to  him.  Did  he  doubt  Porter's  truth  ?  Did 
he  think  his  statement  false  ?  He  could  not.  He  must  have  known,  or 
could  have  informed  himself,  that  in  the  estimation  of  all  who  knew  them, 
Porter  as  a  gentleman,  and  man  of  honor,  is  in  every  respect  the  peer  of 
McDowell  and  King,  and  himself.  It  is  no  answer  to  this  suggestion, 
that  Porter's  defence  is  not  evidence.  It  is  not  legally,  but  it  is  morally. 
Locke  being  confirmed  by  Porter,  whose  veracity  no  gentleman  will 
question,  should  have  saved  Locke  from  the  charge  of  perjury,  so  reck- 
lessly made  by  the  Judge  Advocate. 

But  the  evidence  of  Locke,  after  McDowell  and  King  were  examined,  is 
so  clear  that  it  is  impossible  not  to  credit  it.  After  stating  why  he  con- 
sidered McDowell's  message  to  Porter  singular  and  important,  he  said 
that  on  that  account  "it  impressed  rae  very  strongly  all  the  way  up  to 
the  time  that  I  gave  it  to  General  Porter."  That  its  character  was  such 
that  he  thought  no  one  should  hear  it  but  Porter,  and  that  he  therefore 
"delivered  it  to  him  in  an  under  tone,"  and  that  he  had  "  never  forgotten 
the  messages  or  the  incidents  connected  therewith."  He  also  described 
minutely  where  he  found  McDowell  and  King.  At  the  time  he  knew  the 
former  well,  but  not  the  latter.  And  in  conclusion  was  asked  this  ques- 
tion :  "  are  you  entirely  positive,  as  much  as  you  can  be  of  any  fact,  that 
you  did  deliver  to  General  Porter,  on  the  afternoon  of  the  29th  of  August, 
words  which  purported  to  be  a  message  from  General  McDowell,  to  the 
effect  that  General  King  was  to  be  taken  away,  and  that  he,  Porter,  was 
to  remain  where  he  was,"  and  answered,  "  I  am  positively  certain  op 
IT."     (Pp.  223,  224.) 

It  is  not  thought  that  there  was  a  person  present  when  this  evidence 
was  given,  not  excepting  the  Judge  Advocate,  who  did  not  fully  believe 
it.  It  was  impossible  to  do  otherwise.  The  manner  of  tlie  witness,  his 
evident  intelligence,  the  reason  he  assigned  for  his  conviction,  all  united 
to  challenge  absolute  confideuce  in  his  truthfulness  and  accuracy.     To  dis- 


62 

credit  liim  as  to  the  fact  of  delivering  the  message  to  Porter,  on  the 
authority  of  the  legal  maxim  quoted  by  the  Judge  Advocate,  is  as  cruel 
as  it  is  legally  absurd.  With  as  much,  indeed  greater  propriety,  could 
the  maxim  be  used  to  destroy  the  whole  evidence  of  McDowell  and  King. 
The  one  is  proved  by  Locke  to  have  given  the  order,  the  other  to  have 
heard  it  given.  No  fair  legal  mind  can  doubt  this.  They  say,  they  do 
not  recollect  the  facts.  The  Judge  Advocate  maintains  "that,  under  the 
circumstances,  this  is  in  effect  the  same  as  positively  swearing  that  the 
facts  did  not  occur." 

They  then  are  found  to  have  labored  "  under  a  complete  misapprehen- 
sion in  regard  to  "  them,  and,  being  lo  that  extent  "  discredited,"  the  dis- 
credit necessarily  attaches  to  "all  the  evidence,"  and  under  the  maxim, 
"falsum  in  uno,  falsum  in  omnibus,"  to  use  the  Judge  Advocate's 
Latin,  the  entire  evidence  "falls  to  the  ground."  That  an  accusation  of 
falsehood  against  these  officers,  on  that  ground,  would  be  most  unjust 
and  disreputable  to  him  who  should  make  it,  all  will  agree,  and  none, 
it  is  supposed,  more  decidedly  than  the  Judge  Advocate.  And  yet  such 
an  imputation  is  cast  by  him  on  Locke,  on  tliat  very  ground  and  no 
other.  The  topic  is  too  unpleasant  to  be  further  considered.  But 
finally,  on  this  specification,  how  the  Court  could  find  it  against  Porter  is 
incredible.     It  averred  only  disobedience  of  Pope's  joint  order. 

Whether  that  existed  or  not  was  best  known  to  Pope.  Porter's  con- 
duct was  all  before  him.  He  was  informed  of  everything  that  he  had 
done  under  the  joint  order.  And  yet  with  this  information,  in  no  part  of 
his  evidence  did  he  state  or  intimate  that  the  order  had  not  been  obeyed. 
All  that  he  said  on  the  subject,  or  that  the  Judge  Advocate  could  induce 
him  to  say,  was  not  that  that  order  was  not  obeyed,  but  the  subsequent 
one  of  4.30  of  that  day.  At  the  time  this  last  order  was  received,  the 
proof  is  clear  and  uncontradicted,  that  Porter  was  doing  everything  re- 
quired by  the  joint  one. 

Neither  Pope  nor  any  other  witness  testified  to  the  contrary.  And 
yet  the  Court  found  the  specification  true.  Such  a  finding  under  all  the 
circumstances  can  serve  but  to  disparage  their  intelligence  in  the  estima- 
tion of  the  public. 

Third  Specification. — First  Charge. 

Disobedience  of  the  4.30  order  of  the  29th  of  August.  The  order  was 
as  follows : 

Headquarters  in  the  Field, 

August  29,  1862,  4.30  p.  m. 

Major  General  Porter:  Your  line  of  march  brings  you  on  the 
enemy's  right  flank.     I  desire  you  to  push  forward  into  action  at  once  on 


the  eneray's  flank,  and,  if  possible,  on  his  rear,  keeping  your  right  in  com' 
munication  with  General  Reynolds.  The  enemy  is  massed  in  the  woods 
in  front  of  us,  but  can  be  shelled  out  as  soon  as  you  engage  their  flank. 
Keep  heavy  reserves  and  use  your  batteries — keeping  well  closed  to  your 
right  all  the  time.  In  case  you  are  obliged  to  fall  back,  do  so  to  your 
right  and  rear,  so  as  to  keep  you  in  close  communication  with  the  right 
wing. 

JOHN  POPE, 

Major  General  commanding. 

I.  It  will  be  seen  that  this  order  assumes  that  Porter's  line  of  march 
under  the  joint  one,  would   bring  him  "on  the   eneray's   right  flank. '^ 

It  directs  him  therefore,  when  he  gets  on  that  flank  to  attack  it  "at 
once,"  and  if  possible  the  enemy's  "rear."  To  do  this  last,  the  flank  was 
necessarily  to  be  first  turned.  So  that  the  order  with  reference  to  both 
the  flank  and  rear  attacks,  was  intended  to  dei>end  on  the  contingency  of 
Porter's  march  under  the  previous  order,  bringing  him  "on  the  enemy's 
right  flank."  As  this,  however,  necessarily  involved  the  line  of  the  enemy's 
march  as  well  as  that  of  Porter's,  and  neither  he  nor  Pope  could  control 
the  former.  Pope  could  not  have  been  certain  when  he  issued  the  4.30 
order,  that  Porter  would  be  brought  by  the  route  he  was  pursuing  under 
the  joint  order  on  the  enemy's  right  flank.  Pope  therefore  could  not  have 
designed  (the  words  indeed  of  the  4.30  order,  negative  such  a  design,) 
that  Porter  was  to  attack,  unless  his  march  Ijroiight  him  on  that  flank  of 
the  enemy.  If  it  should  bring  him  on  the  enemy's  left  or  centre,  then  the 
order  from  necessity  became  inoperative, 

II.  Where  then,  pursuing  as  it  is  admitted  he  did,  the  route  prescribed 
by  the  joint  order,  was  Porter's  command  when  he  received  that  of  4. 30  ? 
The  proof  is  all  one  way.  He  was  not  on  the  enemy's  right  flank,  but  in 
his  immediate  front,  and  where  he  was  in  full  force.  Not  only  then  was 
the  order  inoperative,  but  to  have  attempted  in  that  position  of  his  troops 
to  have  marched  them  towards  the  enemy's  right  flank  with  a  view  to 
attack  that,  and  if  possible,  his  rear  would  not  only  have  failed,  but  almost 
certainly  have  been  followed  by  serious,  if  not  fatal  consequences  to  his 
command.  What  was  the  fact  ?  Was  the  enemy  in  his  front,  and  in 
force,  when  he  received  the  4.30  order? 

I.  At  what  hour  did  he  receive  it  ? 

The  Judge  Advocate  on  this,  as  well  as  on  every  other  point  of  doubt, 
decides  so  as  to  prejudice  Porter.  The  rule  is  otherwise  in  every 
system  of  civilized  jurisprudence,  and  this  is  believed  to  be  the  first  case 
»u  which  it  has  been  uniformly  departed  from. 


64 

Facts  have  not  only  been  disregarded,  inferences,  the  wildest  and  the 
most  uncharitable,  indulged  in,  but  the  best  established  legal  principles, 
without  even  a  sophistical  reason  to  excuse  it,  totally  repudiated.  But 
when  did  Porter  in  fact  receive  the  order  ?  The  Judge  Advocate  admits 
that  in  regard  to  this,  "  there  is  a  decided  contlict  in  the  testimony."  He 
seems  rather  inclined  to  conclude  for  himself,  that  it  was  received  about 
5^  o'clock.  And  he  suggests  that  "it  maybe  that  after  carefully  con- 
sidering all  the  circumstances,  the  Court  felt  that  the  explicit  and  intelli- 
gent statements  of  Caftaiu  Pope,  and  his  orderly,  fortitied  by  the  cor- 
roborative evidence  of  Generals  Pope,  McDowell  and  Roberts,  were  not 
overcome  by  the  opinions  of  the  five  officers  examined  on  the  part  of 
Porter.     (P.  309.) 

But  what  is  the  evidence. 

1.  Captain  Pope  of  General  Pope's  staff. — He  says  that  he  supposes 
that  the  distance  between  Pope  and  Porter  when  he  got  from  the  former, 
the  4.30  order  was  "  three  miles,"  and  swears  that  it  was  in  Porter's  hands 
"by  five  o'clock."  On  cross-examination,  he  admitted  that  he  fixed  the 
hour  when  it  was  handed  to  him,  by  Pope,  from 'the  time  stated  on  the 
face  of  the  order.  He  did  not  profess  other  knowledge  of  it.  He  de- 
scribed the  road  he  took  to  get  to  Porter,  and  said  that  he  returned  by 
the  same  road.     (P.  57.) 

2.  Charles  Duffer,  the  orderly. — He  fixed  the  distance  between  the 
two  Generals,  not  at  three,  but  at  "  about  ^tue  miles,  as  near  as  he  could 
judge  from  travelling  the  road."  This  is  the  distance  that  the  Judge 
Advocate  adopts,  discarding  in  that  respect,  what  he  calls  "  the  explicit 
and  intelligent  statement  of  Captain  Pope."  He  says  that  Pope  "rode 
as  fast  as  his  horse  could  carry  him,  and  had  but  about  five  miles  to 
travel,  and  yet  according  to  the  theory  of  the  defence,  that  he  did  not 
arrive  until  sunset,  or  half-past  six,  he  was  two  hours  on  the  way,"  and 
then  asks  with  an  air  of  triumphant  logical  confidence,  "  is  it  credible  that 
a  staif  officer  bearing  an  important  order  in  the  midst  of  a  fiercely  con- 
tested battle,  would  have  travelled  at  this  rate,  and  this  too  when  he  was 
conducted  by  an  orderly  acquianted  with  the  road,  and  encountered  no 
obstacle.  Is  it  not  much  more  probable  that  but  a  single  hour  was  occu- 
pied, and  that  in  point  of  fact,  he  arrived  at  half-past  five  ?"  (P.  309.) 
He  thus  rejects  as  to  the  time  of  arrival,  as  he  had  done  as  to  distance, 
Pope's  evidence,  and  adopts  that  of  the  orderly,  and  yet  tells  us,  that  the 
statements  of  both,  though  materially  conflicting,  were  adopted  by  the 
Court  as  being  "explicit  and  intelligent."  He  also  says  that  these  state- 
ments were  "  fortified  by  the  corroborative  evidence  of  Generals  Pope, 
McDowell  and  Roberts."     How  this  could  be,  when  the  statements  were 


65 

contradictory  of  each  other,  it  is  not  very  easy  to  comprehend.     But  let 
that  pass.     What  is  the  supposed  corroborative  evidence  ? 

1.  General  Pope. — "T  know  that  an  Aid-de-Camp,  riding  rapidly, 
could  go  from  the  field  of  battle  to  Manassas  Junction  or  to  any  point 
west  of  Manassas  Junction  within  an  hour  by  going  at  sjjeed.'^ 

2.  Roberts,  the  disinterested  prosecutor  of  Porter, — he  says  that  he 
was  present  when  the  order  was  issued,  and  gives  it  as  his  opinion  that  it 
should  have  been  delivered  "in  half  an  hour  or  less  as  orders  are  generally 
delivered  on  such  occasions." 

3.  McDowell. — He  agreed  with  young  Pope  as  to  the  time  and  place 
when  he  says  he  saw  the  witness.  Neither  of  these  officers  even  profess 
to  know  when  the  order  in  fact  was  delivered  to  Porter,  nor  at  what  rate 
of  speed'the  messenger  travelled,  nor  the  character  of  the  road  he  passed 
over;  and  yet  their  opinions  are  gravely  relied  upon  as  confirming  the 
statements  of  the  messenger  and  his  orderly,  although  they  vitally  con- 
flicted with  each  other.  And  their  statements  and  their  supposed  corrobo- 
ration are  held  sufficient  wholly  to  rebut  the  positive  proof  of  five  wit- 
nesses of  admitted  intelligence  and  unquestioned  integrity,  who  were  pre- 
sent when  the  order  was  delivered,  and  concurred  as  to  the  time. 

That  this  would  be  manifestly  unreasonable  if  the  evidence  of  the  two 
was  the  same,  and  if  neither  was  contradicted  in  any  material  fact,  every 
impartial  mind  will  agree.  But  in  this  instance  it  is  the  more  obviously 
unreasonable  since  Pope  is  contradicted  as  to  other  material  facts  than 
the  hour  at  which  he  says  he  delivered  the  order,  and  II,  Duffer,  the  orderly, 
disproves  the  facts  on  which  Pope  and  Roberts,  and  the  Judge  Advocate, 
base  their  opinions.  Captain  Pope  stated  first,  that  after  giving  the 
order  to  Porter  he  returned  by  the  same  road  by  which  he  had  arrived, 
second,  that  no  one  pointed  out  to  him  the  road  on  his  return,  except  his 
orderly. 

In  both  these  particulars  he  is  expressly  contradicted. 

1.  By  Lieutenant  Weld. — In  his  evidence  in  chief  he  says,  that  be  car- 
ried, on  the  afternoon  of  the  29th,  an  order  from  Porter  to  General  Pope, 
and  adds,  I  "  got  back  after  sundown, — I  think  it  was  about  a  quarter 
to  seven  o'clock  when  I  got  back,  as  near  as  I  can  recollect."  That  Gene- 
ral Pope's  messenger  to  Porter  (admitted  to  be  Captain  Pope)  "  cayne 
afterwards.''^  "I  was  told  to  show  this  messenger  the  direct  road  back 
to  General  Pope.  I  did  show  it  to  him,  and  described  it,  and  even  drew 
on  a  piece  of  paper  the  road  I  had  taken,  which  I  afterwards  found  out 
was  not  the  direct  road ;  there  was  a  little  variation  in  it.  He  could  not 
see  the  road ;  he  did  not  seem  to  understand  where  the  road  was,  where 
5 


66 

it  crossed  the  rail  road.  Some  one  then  told  me  that  T  had  better  go  and 
show  him  where  the  road  was,  and  I  went  up  to  the  rail  road  with  him, 
and  pointed  out  the  road  that  I  had  taken."  "He  started  on  it.'^ 
(P.   130.) 

2.  Lieutenant  George  T.  Ingham,  Aid  de  Camp  to  General  Sykes. 
Was  present,  he  said,  wlien  the  order  was  delivered  to  Porter,  and  knew 
Pope,  the  messenger:  "it  was  after  sunset."  That  Pope  did  not  re- 
main "there  more  than  twenty  or  twenty-five  minutes  at  the  outside." 
That  after  he  had  left,  the  witness  was  sent  by  Porter  to  recall  him.  "  I 
rode  on  pretty  rapidly,  and  I  found  Captain  Pope  had  got.  between  a 
quarter  and  a  half  mile."  There  were  several  officers  on  the  road,  and  I 
had  to  ride  up  close  to  Captain  Pope  to  see  who  he  was,  it  was  so  dark  at 
that  time."  He  further  stated  that  Pope,  on  starting  to  return,  did  not 
take  "the  Dudley  Springs  Road,  the  road  he  finally  took,"  but  "was  bear- 
ing off  down  the  rail  road,  towards  Manassas  Junction,  and  that  he  then 
told  him  to  take  the  left  hand  road,  and  that  then  Lieutenant  Weld  (the 
former  witness)  went  down  to  the  road  with  Pope  to  show  him  which 
road  to  take."  (P.  199.)  It  will  be  remembered  that  Pope  had  sworn, 
that  he  had  returned  by  the  same  road  that  he  had  come,  and  that  no  one 
had  pointed  out  to  him  any  other. 

3.  Major  General  Sykes. — He  was  present  when  Captain  Pope 
delivered  the  order  to  Porter.  It  was  "  as  near  sunset  as  I  can  remem- 
ber ;  cer/ain^y,  within  a  little  before  sunset,  or  after  sunset. "     (P.  177.) 

4.  Locke. — He  witnessed  the  delivery,  and  said  it  was  ''between 
sundown  and  dusk."     (P.  136.) 

5.  Montieth  — Was  present,  knew  Pope,  and  says  he  delivered  the 
order  about  "sundown."     (P,  127.) 

All  this  evidence,  however,  is  rejected  by  the  Judge  Advocate,  and,  as 
he  tells  us,  by  the  Court,  although  the  witnesses  were  with  Porter  when 
the  order  was  delivered,  saw  it  delivered,  and  concurred  in  stating  that  it 
was  about  sundown.  Their  statements  are  at  least  equally  "  explicit  and 
intelligent"  as  Pope's  and  his  orderly's,  but  they  are  passed  over,  and 
theirs  adopted. 

II.  Nor  does  the  corroborative  evidence  relied  upon  in  support  of  the 
latter  amount  to  anything.  It  consists  of  mere  opinion,  whilst  the  re- 
jected evidence  was  positive  statement  of  facts,  made  on  personal  know- 
ledge. When  the  order  could  have  been  delivered,  in  the  judgment  of 
Generals  Pope  and  Roberts,  and  how  long  it  would  take  a  messenger  to 


67 

go  from  the  point  where  he  saw  McDowell  to  Povier's  tent,  can  be  but 
mere  opinion.  General  Pope  says  an  hour.  Roberts  says  a  half  hour, 
in  no  exigency  does  he  fail,  the  Judge  Advocate.  Jiut  to  carry  the  mes- 
sage within  either  an  hour  or  half  liour  tiH;y  unite  in  saying  that  speed 
was  necessary.  Pope  says  it  could  be  done  within  tlie  lime  he  named, 
"by  going  at  speed," — Roberts,  in  his  "  half  hour  or  less,  if  carried  "as 
orders  are  generally  carried  on  such  occasions."  Whether  it  was  in  fact 
carried  "  with  speed,"  or  as  is  "generally"  done,  neither  ventures  to  say. 
The  Judge  Advocate  presumes  "speed"  from  the  character  of  the  mes- 
sage. He  cannot  believe  it  "credible  that  a  staif  .'i.l'.cer"  could  be  more 
than  an  hour  iu  performing  such  a  duty.  In  his  view  it  is  nothing  that 
five  intelligent  and  honorable  witnesses  swear  positively  to  a  later  delivery. 
He,  and,  as  he  says,  the  Court,  ado]}ts  the  statements  of  Pope  ai;d  hi8 
orderly,  not  only  not  corroborated  in  any  manner,  but  expressly  contradicted 
in  the  very  material  fact  of  the  roads  travelled  coming  or  returning.  The 
reasoning  of  the  Judge  Advocate  is  tliat  the  messenger  did  what  he  pro- 
fesses to  have  done,  because  he  should  have. done  it 

He  also  maintains  in  the  support  of  his  hypothesis,  that  Pope  "rode 
as  fast  as  his  horse  could  carry  him."  How  fast  that  was  depended 
on  the  character  of  his  horse  and  of  his  orderly's,  and  the  nature  of 
the  road.  To  suppose  all  horses  go  at  the  same  pace,  and  that  their 
speed  is  irrespective  of  the  nature  of  the  road,  is  not  exactly  logical,  if 
experience  is  to  be  considered.  And  in  this  case,  too,  to  conclude  that 
actual  speed  was  had  in  the  sense  in  which  the  term  is  used  by  Generala 
Pope  and  Roberts,  and  the  Judge  Advocate,  is  to  disregard  the  evid- 
ence of  the  orderly.  It  is  apparent  that  the  Court,  who  alone  examined 
this  witness,  (he  was  produced  by  the  Government,  after  Porter  had 
"  rested  his  case,")  would  like  to  have  had  him  prove  that  great  speed 
was  used  in  the  transmission  of  the  order,  but  in  this  they  failed.  He 
said  "sometimes  we  were  on  a  trot,  sometimes  on  a  walk,  and  sometimes 
on  a  canter,  going  about  as  fast  as  we  thought  our  horses  could  travel. 
(P.  20S.)  He  was  then  asked,  "how  much  of  the  way  did  you  gallop  ?" 
And  answered,  "that  is  morp  than  I  can  tell  you.  We  went  as  fast  as 
we  could  from  the  nature  of  the  road,  and  as  we  thought  our  horses  could 
travel."  He  was  further  asked,  "do  you  remember  whether  you  trotted 
or  walked,  or  galloped  the  most  of  the  way,"  and  replied  "  ive  had  to  go 
a  good  deal  of  the  way  quite  slow,  on  account  of  the  road  being  very 
'hn,t,  rough  in  places.''^  The  Court  unwilling  to  abandon  their  purpose, 
asked  this  additional  question,  "did  you  gallop  any  at  all?"  And  were 
answered,  "yes  sir,  we  did."  I  recollect  gallo[)ing  some,  in  other  places 
we  had  to  go  quite  slow.     (Pp.  209,  210.) 

The  speed,  therefore,  required,  in  the  judgment  of  Generals  Pope  and 
Roberts,  for  the  delivery  of  the  order  by  five,  or  five  and  a  half  o'clock, 
was  not  used,  unless  to  travel  "a  good  deal  of  the  way  quite  slow,"  as 


68 

proved  by  the  orderly,  and  not  disproved  by  young  Pope,  is  to  go  with 
speed.  It  is  not  only  true,  therefore,  that  the  preponderance  of  evidence 
Bhovvs  that  the  time  of  the  delivery  of  the  order  was  about  sunset,  but 
that  there  is  not  any  reliable  evidence  to  the  contrary.  Even  however, 
if  the  first  part  of  the  remark  alone  was  correct,  the  Court  should  have 
found  the  fact,  that  the  delivery  was  at  that  time.  They  had  neither  the 
legal  nor  moral  right  to  find  it  otherwise.  Where  witnesses  are  equally 
intelligent  and  fair  in  character,  the  testimony  of  the  greatest  number  is 
to  prevail.  The  probabilities  of  mistake,  (designed  mistake  in  such  case 
being  impossible,)  are  kss  likely  with  many  than  a  few.  The  Court,  con- 
sequently, in  pursuing  the  course  attributed  to  them  by  the  Judge  Advo- 
cate, violated  both  legal  and  moral  principle.  In  addition,  however,  to 
the  distinct  proof  of  the  five  witnesses,  which  was  made  to  yield  to  that 
of  the  two,  though  one  of  the  two  was  positively  contradicted,  and  the 
evidence  of  the  other  but  served  to  confirm  that  of  the  five,  there  was 
before  the  Court  in  regard  of  the  transmission  of  other  orders  in  which 
no  error  was  intimated,  evidence  that  strongly  confirmed  that  of  the  five. 
It  is  this  :  > 

The  order  of  3  A.  M.  of  the  29th  was  not  delivered  until  6  A.  M., 
3  hours,  though  the  distance  was  but  five  miles.  That  of  8.30  P.  M. 
the  same  day,  not  until  3  A.  M.  of  the  30th,  6|  hours — distance /owr 
miles.  And  another  of  the  29th  of  great  importance,  (p.  28,)  was  three 
hours  in  its  delivery,  and  one  of  8.50  P.  M.  of  the  same  day,  (p.  7,)  was 
6  40  A.  M. 

Neither  of  the  officers  who  bore  those  several  orders,  were  reprimanded 
by  Pope  for  delay.  Nor  could  they  have  been,  justly.  The  roads  were 
very  bad,  and  comparatively  unknown,  and  the  horses  much  broken  down 
by  prior  hard  work.  Speed,  of  course,  was  impossible.  It  cannot  be 
necessary  to  pursue  the  inquiry  further. 

The  order,  then,  having  been  received  about  sun  down,  or  as  General 
Sykes  says,  "certainly  within  a  little  before  sunset,  or  about  suuset," 

I.  Was  it  obeyed?     And 

II.  If  not,  why  not  ? 

The  proof  is  distinct,  that  the  moment  it  was  received,  Porter  sent 
an  order  to  Morell,  who  was  in  the  advance,  to  attack  the  enemy. 

1.  Locke  says,  Porter  handed  me  the  order,  and  "very  soon  after- 
wards ordered  me  to  ride  up  to  General  Morell,  and  direct  him  to  move 
forward  and  attack  the  enemy  immediately,  and  to  say,  that  he  would 
be  up  himself  right  after  me."     (P.  136.) 


69 

2.  Morell  says,  that  soon  after  sunset,  Locke  "  came  to  me  with  an. 
order  from  General  Porter  to  make  the  attack,  (he  had  been  preparing 
for  one  under  a  prior  order.")  "  I  told  him,  (and  I  think  in  my  messiige 
to  General  Porter,  I  spoke  of  the  lateness  of  the  day  )  that  we  could  not 
do  it  before  dark."  (P.  147.)  This  order  was  afterwards,  and  in  the 
judgment  of  Morell,  properly  countermanded.  He  thought  that  the  day 
was  too  far  advanced,  and  the  enemy  too  well  and  strongly  posted  in  the 
front,  and  in  too  great  force  to  justify  the  attempt.  In  this  opinion  all 
the  officers  in  the  command  concurred.  Colonel  Marshall,  as  will  be  seen 
presently,  most  decidedly. 

The  Judge  Advocate  states,  that  "  by  the  inaction  "  of  Porter's  com- 
mand, and  by  its  "  falling  back,"  (a  charge  before  reputed,)  "  the  enemy 
had  been  so  far  encouraged  in  their  advance,  that  at  this  hour,  the  front 
of  (Porter's)  column  was  not  separated  from  the  advance  of  the  rebels  by 
more  than  a  mile,  or  a  mile  and  a  half,"  and  that  "little  time  therefore 
was  required  to  make  the  attack."  He  fails,  however,  to  inform  the  Pre- 
'sident,  what  is  evidently  true,  that  the  joint  order  of  the  29th  from  Pope, 
was  designed  to  prevent  the  junction  of  Loiigstreet's  corps,  supposed  to 
be  24,000,  and  Jackson's  25,000.  That  it  was  for  that  purpose,  that 
Pope,  by  that  order,  united  the  commands  of  McDowell  and  Porter. 
Before  McDowell  separated  from  Porter,  he  had  read  General  Buford's 
note  to  General  Ricketts,  as  appears  by  his  evidence.  (P.  83.)  That 
note  was  dated  at  9.30  A.  M.  on  the  29th,  and  stated  thut  "seventeen 
regiments,  one  battery,  five  hundred  cavalry,  passed  through  Gainesville 
three  quarters  of  an  hour  ago,  on  the  Centraville  road.  I  think  this 
division  should  join  our  forces  now  engaged  at  once.  Please  forward 
this."  (P.  84.)  He  also  said  the  regiments  averaged  800  men.  Buford, 
at  the  time  he  sent  this  note,  was  at  Groveton,  about  four  miles  from 
Gainesville.  The  proof  is  most  conclusive  that  it  was  Longstreet's 
corps  that  Buford  referred  to,  and  that  it  was  that  corps  which  was 
in  the  immediate  front  of  Porter.  If  it  was,  as  is  supposed,  the  pur- 
pose of  the  joint  order  that  an  attack  should  be  made  to  prevent  the 
junction  of  Longstreet  and  Jackson,  by  the  blended  commands  of  Mc- 
Dowell and  Porter,  it  should  have  been  made  at  that  time.  Instead 
of  this,  McDowell,  who  being  the  senior  in  rank,  had  the  control  of  the 
whole  force,  retired  with  his  ov/n  corps,  taking  with  him  a  division  of 
Porter's  (King's,)  and  repaired  to  a  distant  point,  which  he  was  several 
hours  in  reaching,  and  where  he  was  beyond  a  supporting  distance  from 
Porter.  This  is  alluded  to  under  the  present  head,  to  confirm  the  state- 
ment before  made,  that  prior  to  his  withdrawing  and  reducing  by  more 
than  one-half,  the  force  whicli  Pope  had  assigned  for  tlie  attack,  and 
leaving  Porter  with  an  enemy  over  double  his  own  fon^e  in  front,  he  never 
gave  Porter  an  order  to  make  the  attack.     This  conclusion  is  necessary 


70 

to  exempt  McDowell  from  the  imputation  of  reckless  folly,  gross  military 
ignorance,  and  a  disregard  of  what  he  must  have  known  was  the  design 
of  the  commander-in-chief  It  was  in  this  condition  of  his  force,  that 
Porter  received  the  order  of  4  30.  And  as  already  appears,  he  gave 
orders,  without  the  least  delay,  to  make  the  attack,  and  abandoned  the 
purpose  afterwards,  l)ecause  of  the  approach  of  night,  which  made  it,  in 
the  judgment  of  Morell,  as  well  as  in  his  own,  impossible  to  make  an 
effective  one.  It  is  asserted  by  the  Judge  Advocate,  that  there  was  not 
an  "earnest  or  vigorous  effort  on  the  part  of  (Porter)  to  obey  the  order." 
Morell  says,  as  has  been  already  seen,  that  the  moment  he  received  Por- 
ter's order  through  Locke,  he  ])roceeded  to  place  "  the  men  in  position  to 
mal?e  the  attack."  And  Locke  says,  that  the  moment  Porter  received 
the  order,  he  carried  one  from  Porter  to  Morell  to  attack,  "  a^  o?7C*e." 
The  Judge  Advocate  assumes  tlnit  there  was  but  a  small  force  in  Porter's 
front,  and  rests  for  his  assumption,  principally  upon  the  testimony  of 
General  Roberts.  It  is  sufficient  to  say,  in  relation  to  his  evidence,  and 
to  show  how  totally  unworthy  of  consideration  it  is  in  this  particular,  that 
he  does  not  pretend  to  have  seen  Porter's  position  on  that  day,  later  than 
"about  one  o^clock.^'  He  could  not  therefore  have  seen  the  position,  or 
had  any  information  of  the  strength  of  the  enemy  in  Porter's  front,  later 
than  that  hour.  Nor  does  he  pretend  to  have  been  nearer  to  it,  at  any 
time  of  the  day,  than  "  a  mile  and  a  half."  He  says,  too,  "  I  could  not  see 
his  command,  there  were  woods  intervening,"  nor  could  I  "see  his  im- 
mediate front."  (P.  215.)  And  yet,  although  it  was  literally  impossible 
that  he  could  have  any  information  to  justify  it,  he  gives  it  as  his  opinion 
that  there  was  "only  a  cavalry  force  with  some  light  artillery,"  in  Porter's 
front.  And  yet,  more  strange  is  it,  that  the  Judge  Advocate  adopts  this 
opinion  in  preference  to  the  testimony  of  Major  Hyland,  attached  to 
Colonel  Marshall's  regiment  of  skirmishers,  and  who  was  eight  hundred 
or  a  thousand  yards  in  advance  of  Morell,  and  near  the  enemy,  of  Lieut. 
Stevenson,  of  Colonel  Marshall,  Morell,  and  of  every  other  officer  ex- 
amined, who  was  with  Morell's  command  on  that  evening.  Under  the 
circumstances,  his  criticism  upon  the  testimony  of  Stevenspn,  that  "he 
was  a  young  man  with  limited  experience,"  is  amusing,  when  it  is  remem- 
bered with  what  confidence,  he  relies  upon  the  testimony  and  opinion  of 
young  Pope,  Smith  the  orderly,  and  Roberts,  with  his  admitted  ignorance 
of  the  facts  upon  which  he  gives  his  oi)inion.  The  reliable  evidence  upon 
the  point  which  was  rejected  by  the  Judge  Advocate,  is  however,  con- 
chisive. 

1.  Major  Hi/Jnnd. — He  belonged  to  Morell's  division,  and  was  on  the 
evening  of  the  29th  in  "the  front  of  it."  That  his  regiment  was  at  the 
time,  "employed  as  skirmishers,"  "from  about  one  o'clock  of  the  after- 
noon of  the  29th,  until  daylight  of  the  next  day.     That  the  22d  Massachu- 


71 

setts,  and  Berdan's  sharpshooters  were  placed  on  our  left  in  the  eveninA'." 
That  the  enemy  "commenced  forming:  between  two  or  tlirce  o'clock,"  in 
our  front,  "there  appeared  to  be  two  columns  of  them."  Tlie  witness 
indicated  the  position  of  his  regiment,  and  the  enemy  on  the  map,  which 
was  before  the  Court.  That  no  portion  of  the  enemy  was  on  the  left  of 
his  regiment.  That  he  knows  of  their  forming  io  attack  (Porter's  force) 
during  the  day.  He  "could  hear  the  commands  plainly  as  if  forming  iu 
line,"  and  "the  movements  of  their  artillery  coming  into  position."  On 
cross-examination  by  the  Judge  Advocate,  in  answering  this  question  with 
reference  to  the  number  of  the  enemy,  "  can  you  state  how  many  thou- 
sands, or  divisions,  or  regiments?"  he  answered,  "I  could  not  state  the 
number  of  thousands,  or  divisions.  I  judge  from  the  movement  and  from 
the  commands  given,  that  there  was  a  very  large  force  indeed,  i^rohahly 
a  larger  force  than  we  had.''''  He  reported  the  force  to  Colonel  Mar- 
shall, his  commanding  officer.  He  further  stated  that  he  thought  it  "  was 
sujficient  to  have  made  a  successful  resistance  to  General  Forter^s  en- 
tire corps.'''  Although  unable  to  state  with  accuracy,  the  number  of  the 
enemy,  he  yet  added,  that  "from  what  information  I  had,  and  from  what 
I  could  get  from  the  other  officers,  I  thought  their  force  was  very  heavy 
indeed  I  should  think  there  were  probably  10,000  troops  in  front  of  us. 
Judging  by  the  columns  of  dust  that  I  also  saw  coming  from  the  same 
direction."  And  in  reply  to  a  question  by  the  Court,  he  stated  that  in 
his  opinion  "  the  strength  of  the  enemy,"  in  Morell's  front,  was  increased 
by  the  "strength  of  their  position."     (Pp.  174-176.) 

2.  Stevenson,  of  the  13th  New  York  Volunteers,  Marshall's  regiment. 
On  the  29th,  he  went  on  horseback  "from  ihe  left  flank  of  GTcneral  Pope's 
army  to  the  position  then  occupied  by  "  his  regiment.  That  the  distance 
was  "  between  a  mile  and  a  mile  and  three  quarters."  That  he  was  almost 
an  hour  iu  travelling  it,  and  reached  his  regiment  "  between  one  and  four 

'O'clock  in  the  afternoon.  That  wheu  h«  got  there  he  could  "  see  the 
enemy,"  and  "judge  him  to  be  about  between  12,000  and  1.5,000."  That 
he  could  "  see  his  forces  of  different  arms,  infantry  and  artillery,  "  and  could 
see  that  "he  was  receiving  reinforcements." 

3.  Colonel  E.  G.  Marshall,  of  the  13th  New  York  Volunteers,  was 
with  his  regiment  on  duty  with  General  Morell's  division,  on  the  29th. 
"About  one  o'clock,  I  was  detailed  by  General  Porter  to  go  with  my  regi- 
ment across  an  open  country  and  a  ravine,  to  some  timber  that  was  facing 
our  line  of  battle,  and  deploy  skirmishers  to  find  out  the  position  of  the 
enemy,  and  anything  else  that  I  could  find  out  concerning  them  "  They 
were  "a  very  large  force,  and  they  vjere  drawn  up  in  line  of  battle  as 
they  came  down."  After  describing  the  manner  in  which  the  enemy  ap- 
proached, and  saying  that  he  deemed  it  so  important,  that  Morell  should 


72 

know  their  position,  that  he  was  unwilling  to  trust  his  orderlies  or  others 
with  messages,  he  said  that  he  repaired  himself  to  Morell  to  confer  with 
him  "  concerning  the  enemy  "  "This  was  about  dusk."  Upon  hearing 
from  Morell,  that  he  had  orders  from  Porter  to  attack  the  enemy,  and 
finding  that  Morell  was  much  troubled  concerning  it,  and  that  he  "  asked 
my  advice,"  says,  "  I  told  him  by  all  means  not  to  attack,  that  it  was 
CERTAIN  destruction  FOR  US  TO  DO  SO,  THAT  I  for  One  did  not  wish  to  go 
into  that  timber  and  attack  the  enemy.  Their  position  was  a  very  strong 
one,  and  they  were  certainly  in  force  at  that  time,  twice  as  large  as  our 
OWN  FORCE,  ALL  OF  GENERAL  Porter's  CORPS."  Hc  also  said,  "  that  if 
we  had  attacked  them,  I  felt  that  it  was  certain  destruction."  "After- 
wards, at  dark,  I  was  sent  for  by  General  Porter,  and  questioned  very 
stringently  with  reference  to  the  enemy  ;  and  my  remarks  to  him  were  the 
same  as  I  am  nowmaking,  and  as  I  made  to  General  Morell.    (Pp.  189,  190.) 

The  force  of  the  evidence  of  this  last  witness,  the  Judge  Advocate 
attempts  to  avoid  by  asserting,  that  he  was  "largely  influenced  in  form- 
ing his  opinion  from  the  clouds  of  dust  which  (the  Judge  Advocate  says, 
not  the  witness,)  may  have  arisen  as  much  from  the  movement  of  ambu- 
lances and  wagons  as  from  the  march  of  troops.  The  witness  in  answer 
to  this  question  of  the  Judge  Advocate,  "  did  you  make  your  estimate  of 
the  amount  of  that  force  principally  from  the  extent  of  the  line  as  indi- 
cated by  the  clouds  of  dust,  or  had  you  other  means  than  that  of  judg- 
ing ?"  Said,  "  my  estimate  was  made  mostly  from  the  length  of  time, 
which  they  were  coming  down — there  appeared  to  be  artillery  and  in- 
fantry— and  the  time  that  we  were  attacked,  and  also  from  what  I  had 
seen  of  the  enemy's  dust  prior  to  going  on  this  duty,  and  the  length  of 
their  lineii,  as  much  as  I  could  see  of  it  in  our  front  " 

There  is  no  foundation,  therefore,  in  fact,  for  the  criticism  of  the 
Judge  Advocate.  Of  the  intelligence,  integrity,  and  patriotism  of  this 
witness,  the  Judge  Advocate  does  not  even  insinuate  a  doubt.  Nor 
does  he  question  his  military  capacity.  He  was  a  Captain  in  the  regu- 
lar army,  and  for  his  ability  and  gallantry  was  made  Colonel  of  his 
regiment.  His  gallantry  was  greatly  disi)layed  in  the  then  recent  battle 
of  Fredericksburg,  where  he  was  severely  wounded.  The  Court  repaired 
to  his  chamber,  where  he  was  confined,  and  there  took  his  tesiimony.  To 
discard  the  evidence  and  opinions  of  this  witness,  and  of  Hyland,  and 
Stevenson,  and  to  adopt  the  ridiculous  opinion  of  Roberts, — ridiculous, 
because  founded  in  ignorance,  as  he  admitted,  of  the  facts,  is  an  insult 
to  the  understanding. 

It  being  then  clear,  that  it  would  have  been  madness  in  Porter,  to  have 
attacked  the  enemy,  who  were  in  his  front,  at  sunset  on  the  29th,  and 
equally  clear,  that  to  have  done  so  would  not  have  been  justified  by  the 
4.30  order,  but  on  the  contrary,  would  have  been  a  yiolation  of  it,  as  it 


73 

directed  him  to  attack  "the  enemy's  flank,  and  if  possible  his  rear:"  let 
us  see  whether  when  he  received  it,  he  conld  have  made  such  attacks  ?  At 
that  time  there  was,  as  proved  Vjy  Marstiall,  and  the  other  witnesses  re- 
ferred to,  in  Porter's  front,  a  force  of  the  enemy  twice  as  great  as  his 
own.  To  have  reached  their  flank  he  must  have  marched  in  front  and  to 
the  entire  distance  of  the  enemy's  line.  Their  force  consisted  of  infantry, 
cavalry,  and  artillery.  With  this  force  they  could  have  assailed  him  in 
every  foot  of  his  progress,  and  readily  have  attained  a  position  in  his  own 
rear,  which  must  have  ended,  in  all  human  probability,  in  his  annihilation, 
and  if  so,  in  the  destruction  or  capture  of  Pope's  army.  But,  in  addition 
to  this,  the  country  over  which  he  would  have  had  to  pass,  was  so  broken 
and  filled  with  ravines  and  timber,  that  it  would  have  been  impossible,  in 
the  darkness  which  then  prevailed,  to  have  moved  his  infantry  in  anything 
like  order,  and  utterly  impossible  to  have  moved  his  artillery.  To  have 
left  the  latter  behind  him  would  have  subjected  it  to  certain  capture,  and 
would  have  been  a  direct  violation  of  the  order,  as  that  directed  him  on 
his  march  to  "keep  heavy  reserves  and  use  your  batteries." 

The  Judge  Advocate  says,  "it  may  be  admitted,  and  perhaps  the  tesfi- 
mony  requires  the  admission  to  be  made,  that  falling  upon  the  enemy 
on  tlie  afternoon  of  the  29th,  (Porter)  would  have  encountered  both  diffi- 
culty and  danger,"  but  adds  the  very  original  remark  that  "difficulty  and 
danger  in  time  of  war  are  daily  and  hourly  in  the  category  of  the  soldier's 
life.  Their  presence  should  be  for  him,  not  a  discouragement,  but  an  in- 
spiration To  grapple  with  them  should  be  his  ambition,  to  overcome 
them,  his  glory."  (P.  312.)  Without  meaning  to  call  into  doubt  the 
capacty  of  the  Judge  Advocate'  to  judge  what  would  be  a  sol- 
dier's ambition  or  "glory"  in  such  an  exigency,  it  is  certainly  not  dis- 
courteous to  him,  so  say  that  such  soldiers  as  Hyland,  Marshall,  Mo- 
rell  and  Porter,  who  saw  the  diffculty  and  danger,  are  judges  more 
to  be  relied  upon.  In  comparing  in  this  particular  the  Judge  Advocate 
with  Porter,  no  disparagement  is  intended  of  the  former.  When  he  shall 
have  been  in  as  many  battles — shall  have  conducted  himself  with  as  much 
skill  and  valor — shall  have  won  the  same  grateful  applause — have  re- 
ceived such  signal  manifestations  of  approval  from  the  Government — have 
done  so  much  to  fill  the  whole  measure  of  a  soldier's  ambition  and  glory, 
he  will  then,  and  not  before,  have  a  right  to  be  heard  with  respect,  as  to 
what,  in  any  particular  instance,  should  be  a  soldier's  ambition  and  glory. 
Let  us,  however,  examine  what  was  the  extent  of  the  "diiFiculty  and  dan- 
ger" which  the  Judge  Advocate  admits  to  have  existed  In  considering 
this  question,  the  Judge  Advocate  accepts  the  least  and  rejects  the  most 
satisfactory  evidence.  He  relies  on  the  opinions  of  Lieutenant  Colonel 
Smith  and  McDowell,  formed  in  ignorance  of  the  country  to  b*'  passed 
over,  or  of  the  length  of  the  march,  and  of  the  force  of  the  enemy  in  Por- 
ter's front.    That  such  opinions  are  entitled  to  no  weight,  must  be  obvious 


7i 

to  f'very  fair  iniiid.  In  a  court  of  justice,  were  the  principles  of  evidence 
arc  (  jureijeiided  and  inipariially  ai)plied,  they  would  he  promptly  rejected, 
and  (•!(.•  coiiiisei  who  endeavored  to  maintain  them,  lose  reputation  with 
the  'jencii  and  bar.     The  reliable  evidence  is  this: 

1.  Gi'-neral  Reynol'ix.- — He  had  passed  over  the  country  on  the  28th 
wii'i  his  command,  and  says  he  found  i'  "so  broken,  wooded,  and  ob- 
striii  w/j  that  I  had  to  turn  into  a  road  leading  along  the  rail  road 
froii.  (ifainesville  to  Manassas  Junction,  and  finally  marched  on  that  road 
in  «->;ie  column,  around  to  J^etlilehevn  Church,  towards  the  old  battle  field  of 
Bui!  Kun,  bite  in  the  evening  "  That  the  country  between  New  Market 
and  (iioveton  was  "  vti-ry  broken  by  ravines  and  wooded;  I  will  state  that 
//•  '  /*,'  fha'  from  hart  'nj  paase.d  ovi^r  it  on  horseback  that  night,  from 
s^in'-  lure  in  the  neigiil>orhood  of  New  Market  over  to  the  Warrenton 
Pik  ,  near  (irovetoii."  In  his  judgment,  a  command  could  not  have 
"pii  -cd  over  that  couniiy  in  force  with  artillery  in  proper  order  to  face 
an  <    L'liiy,  if  ii   had  to  "  move  i!i  the  immediate  presence  of  an  enemy." 

O  ■  cross-examination  by  the  Judge  Advocate  he  was  asked,  "you  say 
tha'  I  command  with  artillery,  etc.,  could  not  have  pas>ed  over  the  coun- 
try 'Ciui-eu  New  Market  and  Groveton,  in  the  immediate  presence  of 
the  fcueiny  :  was  not  the  ground  equally  l)ad  for  the  enemy  as  for  General 
Pori('r?  And  if  the  enemy  could  take  position  there  why  could  not  Gen- 
eral Pttrter's  troops  have  taken  position  against  them  ?"  And  answered: 
"  //  wan  impossible  to  manoeuvre  troops  over  thai  country."  They  could 
take  pos!Liu:i  there,  of  course,  and  they  could  ije  attacked  in  position  by 
troo;>s.  But  it  ivould  have  been  very  difficult  to  have  got  artillery  up 
through  that  broken  country,  and  a  very  disadvantageous  attack  would 
have  been  made."  He  was  afterwards  asked:  "did  you  or  not  pass 
over  the  country  stretching  from  your  left  towards  General  Porter's  posi- 
tion, on  the  29th,  while  oh  the  tnarch  from  Gainesville  towards  Manassas 
Junction?"  And  answered:  "not  with  my  command."  "Did  uot  the 
enemy,  in  attacking  the  left  and  rear  of  General  Pope  on  Saturday,  30th 
of  August,  pass  with  artillery  and  infantry  much  of  the  country  that 
General  Porter  would  have  had  to  pass  over  on  the  29th  to  attack  the 
right  of  the  Confederates?"  He  replied,  "  Il/iink  not;  I  think  it  had 
gotten  in,  as  it  were,  between  iluit  broken  country  and  our  position  on  that 
day,  occupying  a  ridge  which  crossed  the  turnpike  there,  and  having  the  bro- 
ken country  behind  him.  Because  I  manoeuvred  the  day  before,  29th,  all 
over,  up  to  that  broken  country,  and  got  partially  on  that  ridge,  with  one 
brigade."  The  Court,  evidently  unwilling  to  abandon  their  desire  to 
show  that  Porter  could  have  made  the  attack,  not  satisfied  with  this 
answer,  put  to  the  witness  this  additional  question.  "  Could  so  large  a 
force  as  passed  around  your  left  on  Saturday,  have  done  so  without  passing 
over  a  long  distance  toward  where  General  Porter  was?"     And  received 


75 

this  answer:  "He  had  the  Warrenton  Turnpike  open  for  him,  and  l)y 
coming  down  that  tnrnpilie,  he  filed  in  off  that  turnpiiie,  as  I  supposed, 
though  at  a  different  point,  through  this  broken  coimlry.  He  liad  that 
advantage  in  coming  down  and  occupying  this  ridge."     (Pp.  170-113.) 

2.  Morc.ll. — This  inquiry  was  made  of  him  :  "  Seeing  your  own  posi- 
tion and  tliat  of  General  Porter's  command,  so  far  as  you  knew  ii,  at  the 
period  of  the  day  in  question,  between  sundown  and  the  gray  of  the  even- 
ing, and  seeing  all  that  you  knew  and  believed  of  the  position  of  the 
enemy  at  that  time,  please  to  state  whether  an  attack  by  General  Porter's 
command  upon  the  right  flank  and  rear  of  the  enemy  at  that  time  was 
possible."  And  answered:  "the  only  attack  we  could  have  made  at 
that  time  would  have  been  directly  in  front.  Tlie  firing  of  which  I 
spoke  was  far  to  the  right,  and  at  that  time  we  could  not  have  got  there. 
The  troops  of  the  enemy  in  front  of  us  were  under  cover  in  the  woods. 
If  we  had  moved  forward  we  would  have  gone  over  this  open  space, 
where  our  men  would  have  been  exposed  to  the  fire  of  the  enemy,  without 
any  possibility  of  effectively  returning  it." 

"  Such  being  the  case  as  to  a  movement  on  your  left  to  attack  the 
enemy  by  flanking  him  on  his  right,  please  to  state  whether  you  could 
have  passed  through  the  woods  on  your  own  right  in  any  good  order  to 
attack  the  enemy  in  that  direction  ?"  "I  doubt  whether  we  could  have 
got  our  artillery  through,  even  by  daylight.  We  might  have  passed 
through  the  woods  with  our  infantry,  but  7iot  in  any  fighting  order 
at  all." 

"  Would  it  have  been  possible  to  carry  your  artillery  through  that 
wood  by  night.     "  No  sir  ;  I  think  not.     (P.  147.) 

The  force  of  this  testimony  was  not  attempted  to  be  weakened  by  the 
examination  of  either  the  Judge  Advocate  or  the  Court.  The  intelli- 
gence of  the  witness,  and  his  well  known  high  character,  would  have  ren- 
dered such  an  effort  fruitless. 

3.  Marshall. — "Was  it  possible,  (he  was  asked,)  without  the  greatest 
danger,  for  General  Porter  to  have  made  a  movement  to  his  right  to 
attempt  to  reach  and  attack  Jackson  on  his  right  ?"  "  No  sir ;  it  was 
impossible  to  have  done  so.  In  the  first  place,  it  was  impracticable  to 
cross  the  country  in  that  position  during  the  day.  Again,  we  would  have 
been  obliged  to  have  whipped  the  very  force  in  front  of  us,  large  as  it 
was,  to  have  got  there,  and  it  was  very  doubtful  if  we  could  have  done  it." 

He  also  said,  that  if  Porter  had  "  attempted  the  movement,"  the  enemy 
"would  have  attacked  our  flank."  The  Judge  Advocate  did  not  think  it 
prudent  to  examine  the  witness  at  all  upon  the  point,  but  the  Court  were 
less  cautious.  They  asked  whether,  "from  the  ])osition  of  the  forces,  both 
those  of  the  enemy  and  our  own,  would  the  march  of  General  Porter,  to 


76 

reach  the  right  flank  of  Jackson,  have  been  direct  or  circuitous."  And 
were  answered : 

"It  tvovld  have  been  circuitous,  through  a  broken  country.  If  he 
had  endeavored  to  go  the  most  direct  route,  it  would  have  been  through 
a  broken  country.  But  I  do  not  conceive  that  it  was  practicable  for  him 
to  huve  gone  that  route.  I  think  that  in  order  to  have  acted  upon  the 
enemy  he  would  have  had  to  go  back  the  same  route  we  took  the  next 
morning  in  retreating."  "Not  practicable,  (the  Court  further  inquired,) 
because  of  the  character  of  the  country  or  the  position  of  the  enemy  ?" 
And  were  answered  : 

"Because  of  the  broken  country,  it  was  rocky,  and  then  apart  of  it 
was  very  heavily  timbered,  and  it  would  have  been  impracticable  to 
to  have  carried  artillery  thi'ough  there,  besides  being  fired  upon  and 
met  by  the  enemy  in  our  front."     (Pp.  191-193.) 

There  was  other  testimony  to  the  same  effect,  but  it  is  unnecessary  to 
give  it  in  detail.  It  is  submitted  with  perfect  confidence,  that  this  evi- 
dence is  conclusive  to  show  that  the  order  of  4.30,  which  alone  forms  the 
subject  of  this  specification,  could  not  have  been,  at  the  time  it  was  re- 
ceived, executed.  In  this  opinion  all  of  Porter-^s  officers  who  were 
acquainted  with  the  condition  of  things  concurred.  Under  these  cir- 
cumstances, if  Porter  had  made  the  attempt  to  execute  the  order  and 
had  been,  as  he  certainly  would  have  been  according  to  this  testimony, 
defeated  with  great,  if  not  total  loss,  he  would  have  committed  a  most 
serious  military  offence,  for  which  he  should  have  been,  and  no  doubt 
would  have  been,  held  responsible  and  severely  punished.  If  that  had 
occurred,  too,  judging  from  the  treatment  he  has  received,  no  one  can 
doubt  that  the  failure  of  Pope's  campaign  would  have  been  attributed  to 
such  rash  and  unmilitary  conduct. 

How  ridiculous  it  is  to  reject  the  evidence  of  the  above  named  ofiBcers; 
and  how  insulting  to  the  intelligence  of  a  reader,  to  ask  him  to  put  faith 
in  the  opinions,  not  statements  of  facts,  of  Smith  and  McDowell,  given 
in  admitted  ignorance  of  the  facts  which  rendered  a  compliance  with  the 
order  impracticable.  Smith's  opinion  is  based,  as  he  states,  "on  the  fact 
that  that  portion  of  the  country  over  which  (as  he  understood  it,)  the 
corps  of  (Porter)  would  have  moved  upon  the  enemy,  "was  sufficiently 
practicable  to  enable  the  enemy,  as  they  did,  to  make  a  similar  move- 
ment on  our  left  on  the  next  day.^^  (P.  71-)  The  Italics  are  the  Judge 
Advocate's.  Not  only  did  he  omit  to  inform  the  President,  what  in  fair- 
ness he  should  have  done,  of  the  evidence  here  given,  but  to  advise  him 
that  the  fact  on  which  Smith's  oninion  was  formed,  was  not  true.  That 
Keynolds  had  proved  that  the  enemy's  movement  on  the  BOth  loa.s  iiot 
over  the  ground  which  Porter  must  have  passed  on  the  2dth  to  have 
attacked  their  right  flank.     And  McDowell's  opinion  was  based  upon  the 


77 

same  misapprehension,  and  only  upon  what  (as  he  said)  was  his  "know- 
ledge of  the  country,  derived  principally  from  having  gone  over  the  rail  road 
from  Mannasses  to  Gainesville  in  a  car,  or  on  a  locomotive,  which  gave 
me  but  little  idea  of  it,  as  I  was  engaged  whilst  going  over  with  matters 
which  prevented  my  paying  attention  to  the  country."  And  upon  several 
other  facts,  for  the  most  part  immaterial,  and  unknown  to  him  except  upon 
hearsay.  (P.  93.)  The  Judge  Advocate  seeks  to  aggravate  Porter's 
supposed  offence  by  stating  with  entire  confidence,  that  if  the  order  had 
been  obeyed  it  "would  have  secured  a  triumph  for  our  arms,  and  not  only 
the  overthrow  of  the  rebel  forces,  but  probably  the  destruction  or  capture 
of  Jackson's  army."  He  states  that  this  would  have  been  the  result  if  a 
vigorous  attack  had  been  made  by  Porter  "at  any  time  between  twelve 
o'clock,  when  the  battle -(between  Pope  and  the  enemy)  began  and  dark, 
when  it  closed."  And  for  this  he  refers  to  the  opinions  of  Pope,  Mc- 
Dowell, Roberts  and  Smith,  "all  of  whom  participated  in  the  engagement, 
and  were  well  qualified  to  judge."  This  confidence  is  somewhat  amusing, 
when  it  is  remembered  that  Pope  and  McDowell  never  achieved  a  victory, 
Roberts  no  one  thought  could  ever  achieve  one,  and  Smith  was  a  volun- 
teer of  but  a  few  months  standing,  and  never  before  under  fire. 

But,  waiving  this,  how  totally  immaterial  are  those  opinions  when  the 
proof  is  clear  to  the  dullest  comprehension,  that  the  attack  directed  by 
the  order,  when  that  was  received,  could  not  have  been  made,  and  when 
there  was  no  prior  order  stated  in  this  specification,  or  either  of  the  other 
two  under  the  first  charge,  directing  an  attack  to  be  made  at  all. 

First,  Second  and  Third  Specifications  of  the  Second  Charge. 

These  will  be  considered  together.  They  are  framed  under  the  52d 
Article  of  War,  which  embraces  "misbehavior  before  the  enemy."  They 
charge  Porter  with  such  misbehavior  on  the  29th.  It  will  be  seen  that 
this  concedes  that  there  was  no  order  from  Pope  to  make  an  attack  on 
that  day.  This  charge  has  been  substantially  anticipated.  It  has  been 
proved  conclusively,  that  no  attack  could  have  been  made,  except  with 
the  almost  certain  result  of  serious  defeat,  if  not,  destruction.  Either 
of  which  would  have  been  fatal  to  Pope.  Nor  is  the  fact  true  upon 
which  the  Judge  Advocate  relies,  that  during  the  time  from  twelve 
o'clock  to  sunset  on  that  day,  a  severe  battle  was  raging  between  the  rest 
of  Pope's  command  and  the  enemy,  within  the  hearing  of  Porter.  On 
the  contrary,  the  officers,  all  of  them  who  were  with  Porter,  agreed  in 
stating  that  the  battle  appeared  to  be  mainly  with  artillery,  and  at  some 
miles  from  his  position.  That  Porter  had  no  reason  to  believe,  and  did 
not  believe  that  an  attack  by  him  was  necessary  for  Pope's  safety  or 
success,  appears  by  his  order  to  Morell,  brought  out  on  the  cross-examin- 
ation of  the  Judge  Advocate,  and  received  about  sunset,  or  a  little  before 


78 

sunset.  (P.  150.)  That  order  informed  Morell  ^' the  battle  works  well 
on  our  right,  and  the  enemy  are  said  to  be  retiring  up  the  pike." 

This  reply  has  assumed  dimensions  greater  than  was  anticipated.  It 
was  found  unavoidable  however,  from  the  necessity  of  giving  in  detail 
many  portions  of  the  evidence.  The  object  of  the  writer  was  to  expose 
the  injustice  done  Porter  by  the  Judge  Advocate — to  rescue  him  from 
the  influence  of  the  reputation  of  that  officer ;  and  to  demonstrate  to  the 
public  the  gross  wrong  done  him  by  the  Court,  and  unconsciously,  as  is 
thought,  from  misplaced  confidence,  by  the  President.  In  this  he  cannot 
have  failed.  He  thinks  that  in  the  public  judgment  when  the  case  is  fully 
understood,  the  finding  of  the  Court  will  be  considered  to  be  without  ex- 
planation, except  upon  the  ground  of  mental  imbecility  or  blinding 
pi-ejudice.  The  first,  certainly  did  not  exist.  The  latter  is  believed  to  be 
established. 

With  a  view  to  avoid  this  last  conclusion,  one  which  the  Judge  Advo- 
cate appears  to  have  anticipated,  he  ventures  (and  in  so  doing,  greatly 
compromises  his  legal  reputation)  to  say,  "  it  is  not  believed  that  there 
remains  upon  the  Record  a  single  ruling  of  the  Court  to  which  excep- 
tion could  be  seriously  taken."  Those  rulings  are  on  pages  11,  21,  24, 
39,  41,  51,  7J,  96,  214,  221. 

There  were  several  others  which  Porter's  counsel  considered  erroneous 
but  omitted  to  except  to  them,  in  order  to  save  time,  and  from  their  then 
having  no  hope,  that  anything  they  could  say,  would  change  the  rulings. 
These  involve  two  propositions — 1st,  whether  it  is  competent  for  a 
witness  to  state  his  opinion  upon  the  meaning  of  orders  written  or  verbal, 
and  2d,  whether,  when  the  prosecution  with  a  view  to  show  the  alleged 
criminal  animus  of  Porter,  had  given  in  evidence  his  telegrams  and  con- 
duct, on  the  27th,  28th,  29th  and  30th  of  August,  it  was  not  competent 
to  Porter,  in  order  to  disprove  such  animus,  and  to  show  his  loyalty  and 
his  determination  to  do  his  full  duty  before  getting,  and  after  coming 
under  Pope's  command,  to  offer  in  evidence  his  telegrams,  and  conduct 
on  the  25th,  26th,  31st  of  August,  and  the  1st,  2d,  and  3d  of  September 
telegrams,  constituting  a  series,  of  which  those  offered  by  the  prosecution, 
were  a  part. 

I.  Without  stopping  to  inquire  if  a  decision  on  this  head  was  correct, 
wliich  cither  admitted  or  rejected  the  evidence,  all  will  agree,  that  to 
admit  it  in  some  instances,  and  reject  it  in  others,  cannot  but  be  errone- 
ous. And  that  is  just  what  was  done  by  the  Court.  When  Porter  asked 
the  opinion  of  a  witness,  the  question  was  objected  to  and  overruled. 
When  the  Judge  Advocate,  or  any  member  of  the  Court,  asked  such  a 
question,  though  objected  to  by  Porter,  because  the  same  privilege  was 
not  allowed  him, — the  objection  was  overruled,  and  the  evidence  received. 


79 

The  Record  will  show  that  this  was  uniformly  tho  case.     Its  evident  par- 
tiality and  palpable  injustice,  renders  further  remark  unnecessary. 

II.  To  exclude  statements  and  conduct  made,  and  occuring  a  d:iy  or 
two  before  and  after  the  date  of  those  relied  upon  to  establish  Porter's 
criminal  animus  when  offered  to  explain  the  latter,  and  to  disi)rove  such 
animus,  is  an  error  so  gross,  that  it  is  amazing  how  the  Court,  though 
not  lawyers,  could  have  fallen  into  it,  and  more  amazing  how  the  Judge 
Advocate  could  sanction  it.  The  admissibility  of  the  evidence,  is  proved, 
clearly,  it  is  thought,  in  Porter's  protest,  appendix,  No.  1. 

But  notwithstanding  the  finding  and  sentence  of  the  Court,  and  its  approval, 
and  the  malignant  and  bitter  assaults  upon  him,  before  and  since.  Porter  will 
stand  unharmed  through  the  potent  power  of  truth  and  the  pul)lic  judg- 
ment. The  latter  ever  cheers  the  patriot,  and  sooner  or  later  frustrates 
the  aim  of  the  demagogue  and  palsies  the  arm  of  the  traitor.  In  addition, 
too,  to  this  support,  he  possesses  in  himself  one  even  yet  more  potential. 
He  is  self-sustained  in  the  consciousness  of  innocence,  and  conviction 
of  duty  fully  performed. 

What  shield  against  injustice  is  more  invulnerable  ?  It  abides  with  the 
injured  at  all  times  and  everywhere ;  consoles  him  in  adversity — en- 
hances his  prosperity.  It  is  an  adjunct  to  truth  and  justice,  an  antidote 
to  falsehood  and  calumny,  and  in  the  end  iT"cerfain  to  bring  their  authors 
before  the  public  in  full  relief,  to  be  the  scorn  or  the  jest  of  the  honest. 

The  friends  of  Porter,  therefore,  need  feel  no  further  concern  for  him. 
He  and  his  accusers  stand  for  judgment  before  a  just  and  enlightened 
tribunal,  and  what  fair  mind  can  doubt  the  issue  ? 

But  we  must  all  feel  deep  solicitude  for  the  country,  now  passing 
through  a  dreadful  crisis.  No  people  was  ever  subjected  to  a  more 
perilous  one.  But  this  solicitude  is  not  because  we  doubt  the  result,  if 
the  Government  is  true  to  its  own  duty.  If  it  is,  the  danger  will  soon  be 
over,  and  who  can  doubt  that  it  will  be.  If  keeping  a  single  eye  to  the 
extinction  of  the  rebellion  in  conducting  the  war,  they  discard  mere 
party,  cast  off  intrusive  and  ignorant  politicians,  observe  in  the  loyal 
States,  where  the  ordinary  course  of  justice  is  unobstructed,  all  the  con- 
stitutional guarantees  of  personal  liberty,  recognize  every  individual  right, 
regard  freedom  of  speech  and  of  the  press,  (a  freedom  which  the  people 
will  never  suffer  to  be  impaired,)  restrain  the  excessive  enthusiasm  or 
madness  of  misjudging  officers,  instruct  them  that  it  is  their  duty  to  war 
with  the  rebel  enemy  alone,  and  to  observe  in  so  doing  all  the  humane 
rules  of  the  modern  laws  of  war,  suffering  no  harm  to  be  done  to  private 
property,  nor  the  appropriation  of  it  for  other  than  military  purposes, 
oease  to  foster  the  incompetent,  and  in  an  enlarged  and  enlightened 
statesmanship,  sword  in  one  hand  and  the  olive  branch  of  forgiveness, 
conciliation  and  compromise  in  the  other,  (the  enemies  are  our  brothers, 


80 

and  we  but  seek  to  bring  them  back  to  the  common  household,)  all  will 
ere  long  be  well  again.     The  rebellion  now  so  shaking  the  laud,  like  as 

"Ocean's  mighty  swing, 
When  heaving  on  tempest's  wing, 
It  breaks  upon  the  shore," 

will  have  subsided,  and  before  the  historian  shall  have  written  its  history, 
even  its  vast  wrecks  of  material  wealth,  and  its  vaster  and  more  distress- 
ing wrecks  of  former  harmony  and  affection,  will  have  been  forgotten  in 
the  magnitude  and  universality  of  the  blessings  in  which  the  whole  land 
will  then  be  rejoicing. 

Nor  portentious  of  destruction  as  is  the  black  cloud  that  lowers  o'er 
us  is  there  serious  ground  for  despondency,  much  less  despair.  A  benefi- 
cent Providence  cannot  design  so  to  afflict  us,  and,  through  us,  the  world. 
Great  as  our  national  sins  may  have  been,  and  deserving  of  punishment, 
as  they  no  doubt  are,  it  cannot  be  that  such  a  Being  will  strike  a  nation 
like  ours  out  of  existence.  Protected  and  regulated  freedom  is  so  impor- 
tant to  human  happiness,  that,  if  we  may,  with  reverence,  speculate  on 
such  a  subject,  it  must  be  within  the  scope  of  Heaven's  design  to  secure 
it  to  all.  And  in  the  past  what  has  contributed  more  to  that  result,  than 
our  example  ?  With  institutions  resting  as  their  sole  foundation  on  indi- 
vidual liberty,  we  have  by  its  inherent  and  almost  magic  power  prospered 
as  never  people  prospered  before ;  so  unexampled  and  striking  has  this 
been  that  all  nations  looked  at  us  with  wonder — the  rulers  of  some  with 
envy — the  oppressed,  everywhere,  with  hope  and  gratitude.  Is  such  an 
example  to  end  forever  ?  Believe  it  not.  If,  however,  in  the  inscrutable 
dispositions  of  heaven  it  is  so  to  be,  and  we  are  hereafter  to  live  but  in 
memory,  of  one  thing  we  may  rest  assured,  that  that  dire  calamity  will  not 
be  caused  by  the  fultillmeut  of  the  object  of  this  rebellion.  That  object, 
even  ostentatiously  and  shamelessly  avowed,  is  not  to  vindicate  and 
maintain  freedom,  nor  even  to  rescue  human  slavery  as  it  at  present  exists, 
in  some  of  the  States,  from  the  hazard  of  a  possible  early  overthrow,  but 
to  extend  and  perpetuate  it  through  all  time.  In  the  very  City  and 
State  of  their  nativity,  and  which  for  so  many  years  were  guided,  benefitted 
and  honored  by  the  wisdom  and  presence  of  Mason,  Jefferson,  Madi- 
son, Marshall  and  Washington,  in  defiance  of  all  the  doctrines  which 
thfij:.  inculcated,  and  shocking  the  world  by  their  astounding  and  ini- 
quitous degeneracy,  it  is  proclaimed,  without  rebuke,  and  no  doubt  by 
the  authority  of  him  who  sacriligeously  holds  out  Washington  as  his  model, 
that  the  main  object  of  the  rebellion  is  to  establish  a  Confederacy  which 
will  be  "a  distinct  reaction  against  the  whole  course  of  the  mis- 
taken CIVILIZATION  OF  THE  AGE."  "  ThAT  FOR  LIBERTY,  EQUALITY  AND 
FKATERNITY   THEY   HAVE   DELIBERATELY  SUBSTITUTED   SLAVERY,  SUBORDI- 


«1 

nation  and  government.  that  however  among  equals  equality  is 
right,  among  those  who  naturally  are  unequal  equality  is  chaos." 
"That  there  are  slave  races  born  to  serve,  master  races  born  to 
GOVERN."  Such  are  the  fundamental  principles  (what  a  profanation  of 
the  term,)  which,  addressing  themselves  to  the  universe  of  man,  they  say, 
"  we  inherit  from  the  ancient  world,  which  we  lifted  up  in  the  face  of  a 
perverse  generation,  that  has  forgotten  the  wisdom  of  its  fathers." 
(Spirits  of  the  great  departed,  let  us  hope  that  you  do  not  hear  the  vile 
calumny  I)  By  these  principles  we  live  and  by  their  defence  we  have 
shown  ourselves  ready  to  die  ;  reverently  we  feel  that  our  Confederacy  is  a 
God  sent  missionary  to  the  nations  with  great  truths  to  preach."  "And 
who  hath  ears  to  hear  let  him  hear."* 

No,  no.  Through  such  an  instrumentality  God  will  never  work  our 
destruction.  He  libels  deity  who  for  a  moment  credits  it.  An  honest 
man  might  as  soon  be  suspected  of  effecting  an  end  by  fraud,  perjury  or 
murder. 

There  is  then  no  reason  for  despair.  The  rebellion  will  not  triumph. 
Its  fate  is  already  sealed.  The  lamentations  over  its  anticipated  early 
death  are  heard  in  the  wailings  of  the  conspirators.  The  much  boasted 
array  of  Lee  has  been  arrested  in  its  recent  invasion  of  Maryland  and 
Pennsylvania  by  the  unsurpassed  bravery  of  the  Army  of  the  Potomac, 
handled  with  consummate  skill  by  Meade,  the  gentleman  and  soldier,  and 
driven  back,  with  terrific  slaughter,  to  its  own  impoverished  and  desolated 
Virginia,  stealing  away  at  night,  under  the  cover  of  darkness  and  storm, 
in  the  demoralizing  fear  that  the  arm  of  the  Union  was  approaching 
utterly  to  crush  them.  Yicksburg  and  Port  Hudson  have  fallen,  and  the 
States  of  Louisiana,  Tennessee,  Kentucky,  Western  Virginia,  Maryland 
and  Mississippi  are  ours,  and  the  Father  of  Waters  knows  no  standard  but 
the  Stars  and  Stripes.  The  very  leader  of  the  conspiring  band,  for  years 
the  plotters  of  the  treason,  is  losing  heart.  In  the  beginning  of  his 
wicked  career,  he  ridiculed  the  power. of  the  loyal  States,  and  vauntingly 
threatened  them  with  the  feeling  of  "Southern  steel"  and  "the  smell  of 
Southern  powder."  Jfow,  he  stands  conscience  stricken  and  appalled. 
He  sees,  and  well  he  may,  the  finger  of  God  in  their  dreadful  reverses, 
and  calls  upon  his  deluded  and  ruined  followers  "to  unite  in  prayer  and 
humble  submission  under  God's  chastening  hand."  He  tells  them  that 
they  are  to  attribute  their  trials  and  afflictions  to  their  forgetfulness  of 
Him,  and  to  their  "love  of  lucre,"  (what  an  admission  for  proud  chiv- 
alry,) which  had  "eaten  like  a  gangrene  into  the  very  heart  of  the  land, 
converting  too  many  of  them  into  worshippers  of  gain,  and  rendering 

them  UNMINDFUL  OP  THEIR  DUTY  TO  THEIR  COUNTRY,  TO  THEIR  FELLOW 
MEN,  AND  TO  THEIR  GOD."f 

*  See  Richmond  Examiner,  May,  1F63. 
f  Davis'  Fast-day  Proclamation  of  the  25th  of  July. 
6 


82 

To  their  country  I  How  could  he  have  ever  even  dreamed  that  forget- 
fuhiess  of  duty  to  country,  to  fdlow  man  and  God  would  not  meet  with 
the  chastening  hand  of  heaven  ?  Davis,  the  educated  and  often  honored 
child  of  the  Union,  over  and  over  gain  pledged  by  solemn  oath  to  sup- 
port it,  is  at  last  aroused  to  a  sense  of  the  guilt  of  oaths  violated  and  duty 
to  country  forgotten,  and  on  his  knees  implores  the  forgiveness  of  Omnipo- 
tence. What  stronger  evidence  could  there  be  that  despair  of  success  of 
his  criminal  career  now  fills  his  very  soul  ? 

It  has,  too,  in  its  very  form  of  government,  the  seed  of  its  own  certain  dis- 
solution— secession  is  made  the  vital  principle  of  its  organism.  No  Govern- 
ment is  certain  of  living  a  day,  but,  on  the  contrary,  is  certain  of  a  speedy 
death  under  such  chronic  and  ever  active  disease.  Whilst  it  defies  cure, 
it  is  certain  sooner  or  later  to  produce  death.  And  before  a  single 
nation  has  recognized  its  legitimate  existence,  the  disease  has  manifested 
its  fatal  nature.  Georgia  and  North  Carolina  have  ah'cady  disputed 
the  Confederate  authority,  and  threatened  withdrawal  under  the  acknow- 
ledged theory  of  secession.  So  alarming  has  the  threat  become,  and  so 
obviously  fatal  to  the  Confederacy,  that  notwithstanding  its  constitutional 
recognition  of  the  right,  it  has  been  denied  in  serious  debate  in  their  Con- 
gress, and  the  insubordinate  members  menaced  with  the  exertion  of  the 
central  military  power.  Our  own  downfall  then,  if  ever,  is  not  to  be  now. 
The  rebellion  will  be  put  down.  If  not  by  force,  as  it  may  be,  if  our 
rulers  are  equal  to  the  emergency,  and  as  it  is  believed  it  will  be,  it  will 
fall  through  the  very  feebleness  of  its  form  of  Government.  Fall  it  will. 
Fall  it  must,  and  the  United  States  be  restored  to  the  condition  in  which 
our  fathers  left  it.  A  nation  of  which  its  citizens  can  speak  with  an 
honest  pride  as  being  destined  to  make  "the  world  its  debtor  by  its  dis- 
coveries of  truth  and  example  of  virtuous  freedom." 


APPENDIX. 


I. 

"Washtxgtox,  D.  C,  December  26,  18G2. 

"With  all  proppr  respect  for  the  rulinjj  of  the  Court  on  Wednesday,  refusing  the 
nccit«od  the  right  to  give  in  evidence  the  telegrams  and  messages  he  then  offered, 
dated  before  and  after  the  29th  of  August,  (that  is  to  say,  from  August  22  to  Scp- 
tcmbfer  1.  1862.)  he  begs  leave  to  enter  on  its  proceedings  this  protest. 

The  accused  is  charged,  amongst  other  things,  with  having  disobeyed  the  several 
orders  stated  in  the  specifications  of  the  27tli  August,  1862,  29tli  August,  1862. 
(4.30  p.  m..)  and  29th  August,  1852,  (8.50  p.  m.,)  and  the  prosecution  has  endea- 
vored to  prove  that  such  disobedience  was  by  design,  because  of  a  fi.\ed  purpose  on 
the  part  of  the  accused  not  only  not  to  co-operate  with  the  general  in  command  in 
the  existing  campaign,  but  to  fail  in  his  duty  in  that  regard. 

"With  this  view,  certain  papers,  being  a  part  of  the  same  series  of  telegrams 
■with  those  rejected,  were  offered  by  the  Judge  Advocate,  not  objected  to  by  the 
accused,  when  the  purpose  for  which  they  were  offered  was  stated,  and  received  by 
the  Court. 

And  with  the  same  object  the  opinions  of  the  witnesses,  Roberts  and  Smith, 
founded,  as  they  said,  on  what  they  rei^resent  to  be  the  manner  and  conversation 
of  the  accused,  and  al.so  on  what  the  first  said  he  heard  from  another  that  the  ac- 
cused would  fail  the  commander-in-chief. 

In  the  words  of  the  Judge  Advocate,  this  evidence  was  produced  to  show  the 
animus  of  the  accused  towards  his  chief,  and  in  that  aspect  was  admitted  by  the 
Court.  The  accused  respectfully  maintains,  that  if  evidence  of  that  description, 
for  such  a  purpose,  be  admissible  (as  he  concedes  it  is)  it  is  equally  admissible,  and 
is  his  right,  to  show  by  his  conduct  just  before,  at,  and  after  he  came  under  the 
command  of  General  Pope,  by  what  he  did  and  by  what  he  said,  orally  or  in  writ- 
ing, that  the  asserted  purpose — the  alleged  aximl'S — is  wholly  untrue;  but  that, 
on  the  contrary,  his  real  purpose — his  real  nnimus — from  the  first  to  the  last,  was 
to  do  his  whole  duty  to  the  utmost  of  his  ability,  and  render  his  general  and  his 
country  all  the  aid  in  his  power. 

If  the  prosecution  had  contented  itself  with  exhibiting  the  orders  in  the  spe- 
cifications which  he  is  said  to  have  di.-obeyed,  and  given  evidence  of  the  fact  of 
disobedience,  the  accused  is  advised  that,  even  then,  the  proof  which  the  Court  has 
ruled  out  should  have  been  '•eceived.  J5ut  when,  not  content  with  that  course,  it 
has  attempted  to  prove  his  mental  purpose — to  fathom  his  mind — to  show  that 
from  personal  grudge  to  his  general,  or  other  cause,  he  designedly  disobeyed  such 
orders,  he  is  advised  that  the  evidence  njected  is  clearly  adini.-.sible 

The  general  rules  of  evidence  are  the  same  in  courts-martial  as  in  other  Courts. 
They  are  based  on  principles  of  universal  application,  and  which,  as  experience 
has  demonstrated,  are  be.st  calculated  to  ascertain  the  truth.  One  of  these,  as  well 
settled  as  any  known  to  the  l;iw,  is  that  where  a  mental  intent  with  which  an  act 
is  dor^e  is  in  Ijcue,  tl;e  acts  and  declavdtioizj  o:  the  party  a  few  days  bero/o,  at,  or 


84 

a  few  days  after  the  time  when  the  intent  is  charged  to  have  existed,  hearing  on 
such  intent,  may  be  given  in  evidence  by  either  party.  This  is  a  familiar  rule  in 
cases,  amongst  others,  of  acts  of  alleged  bankruptcy  or  insolvency,  change  of  re- 
sidence, and  of  many  acts  of  alleged  fraud  In  the  first,  whether  the  act  charged 
as  an  act  of  bankruptcy  is  one  or  not,  often  depends  on  the  intent  with  which  it  is 
done;  and  what  the  party  did  before  or  after  is  constantly  admitted  as  legitimately 
illustrating  the  actual  intent. 

In  the  second,  whether  a  man  has  changed  his  residence  often,  also  depends  on 
intent.  He  may  have  removed,  to  remain  permanently  or  temporarily  ;  and  what 
he  has  done  or  said  before  and  after  removing  is  allowed  to  prove  or  disprove 
intent. 

In  the  third,  whether  the  imputed  fraud  was  perpetrated  or  not,  often  depends 
on  intent  unexplained.  The  mere  act  itself  may  appear  criminal  or  innocent.  It 
is  the  purpose  which  gives  it  its  actual  character,  and  this  purpose  may  be  shown 
by  either  party,  by  acts  and  declarations  of  the  person  charged  before  and  after 
the  period  of  the  impeached  act.  This  principle,  I  am  advised,  is  fully  settled, 
not  only  in  all  the  elementary  writers  on  evidence,  but  by  the  Supreme  Court 
of  the  United  States  in,  amongst  other  cases,  that  of  Wood  vs.  United  States. — 
(16  Peters,  362.) 

And  it  is  respectfully  hoped  that  the  Court  will,  on  further  consideration,  see  the 
justice  of  the  rule.  Its  justice  is  strikingly  illustrated  in  this  instance:  the  ac- 
cused is  charged  with  the  dishonorable,  traitorous  purpose  of  having  disregarded 
the  orders  of  his  chief,  to  gratify  some  supposed  personal  dissatisfaction  with  him, 
wholly  reckless  of  its  consequences  to  his  country.  He  is  charged  with  having 
caused  the  defeat  of  our  arms,  and  hazarded  the  safety  of  the  capital,  under  the 
same  degrading  impulse.  One  of  the  witnesses  has  sworn,  without  objection  from 
the  Judge  Advocate  or  the  Court,  that  a  deceased  officer  of  chivalrous  character 
and  spotless  patriotism  had  declared  to  him,  before  the  date  of  either  of  the  orders, 
that  the  accused  would  fail  his  chief.  Another  has  stated,  also  without  objection, 
that  his  conduct  and  manner  in  his  presence  were  such  that  he  was  satisiied  that 
he  was  a  traitor,  and  that  nothing  but  the  fear  of  human  laws  prevented  his  killing 
the  accused  on  the  spot.  This  evidence  was  offered  and  received  to  show  his 
animus — his  intent.  Proudly  conscious  of  his  innocence,  and  knowing  the  base- 
ness of  the  calumny,  he  did  not  object  to  its  introduction,  being  perfectly  willing 
to  let  it  all  go  for  what  it  is  worth.  But  to  deny  him  the  right,  after  it  is  received 
by  the  Court,  to  meet  it  by  proving  what  is  wholly  inconsistent  with  it — acts  of 
duty  about  the  same  period,  orders,  and  messages,  having  no  possible  'purpose  but 
a  faithful  discharge  of  duty  to  his  chief  and  his  country — it  is  submitted  is  a  viola- 
tion of  the  rule  of  evidence,  and  is  to  deprive  him  of  the  very  best  and  most  per- 
suasive proof  that  the  nature  of  the  accusation  admits  of. 

To  show  that  he  was  not  a  traitor,  he  desired  to  establish  constant  acts  of  duty 
immediately  preceding  and  succeeding  the  acts  which  he  is  charged  to  have  done 
traitorously.  To  show  faithfulness  to  Avxij  to  his  chief,  he  desires  to  prove,  as  the 
rejected  evidence  does,  that  to  get  to  his  command,  and  after  he  reached  it,  he  did 
everything  that  diligence,  zeal,  ardor,  and  all  the  skill  and  ability  which  he  pos- 
sessed enabled  him  to  do  to  assist  his  chief  in  every  possible  way  and  at  every 
possible  hazard,  so  as  to  render  his  campaign  a  successful  one. 

Your  ruling  puts  this  out  of  his  power,  and,  respectfully  protesting  against  it, 
he  can  do  nothing  further  than  to  submit  it  to  your  more  mature  consideration. 
(P.  253,  2G4.) 

F.  J.  PORTER.  Mapr  Ganeral. 


85 


n. 

In  addition  to  the  propositions  embraced  as  mentioned  in  the  text,  other  gross 
errors  characterized  the  rulings  of  the  Court.  1.  As  will  be  seen,  (p.  21,)  this 
question  was  propounded  to  Pope. 

"If,  as  you  have  stated,  j'ou  were  of  the  opinion  that  the  army  under  your  com- 
mand had  been  defeated,  and  in  danger  of  still  greater  defeat,  and  the  capital  of 
the  country  in  danger  of  capture  by  the  enemy,  and  you  thought  that  these  calami- 
ties could  have  been  obviated  if  General  Porter  had  obeyed  your  orders,  why  was 
it  that  you  doubted  on  the  2d  of  September  whether  j-ou  would  or  would  not  take 
any  action  against  him  ?" 

The  witness  declined  to  answer  it,  "as  not  being  relevant  to  this  investigation. 
The  Court  was  thereupon  cleared,  and  when  opened,  the  Judge  Advocate  stated 
its  decvsion  was,  "that  the  question  was  irrelevatit .'"  Porter  submitted  a  protest 
in  writing.  The  Court  was  Sgain  cleared,  and  after  sometime  was  opened,  and 
Porter  told  that  his  protest  would  be  held  "under  advisement  until "  the  next 
day.  On  the  next  day,  the  protest  was  read  by  the  Judge  Advocate,  and  is  as 
follows  : 

"The  witness  having,  in  his  examination  in  chief,  attributed  the  disasters  of 
the  army  undt-r  his  command  in  Virginia,  in  August,  last  to  the  failure  of  the  ac- 
cused to  obey  all  or  some  of  his  orders,  and  having  stated  that  he  was  of  the  opin- 
ion that  such  orders  might  have  been  obeyed  ;  and  it  being  so  far  as  the  prosecu- 
tion has  gone,  upon  his  evidence  that  such  disobedience  occurred  that  the  prosecu- 
tion has  endeavored  to  be  maintained;  the  accused  is  advised  by  his  counsel  that 
the  question  just  ruled  out  by  the  Court  is  not  only  relevant  and  legal  but  most 
material,  in  order  to  show  that  the  recollection  of  the  witness  in  such  his  examina- 
tion in  chief  is  not  to  be  relied  upon ;  and  that  he  for  the  iirst  time  afterwards 
charged  the  alleged  disobedience  upon  the  accused  ;  because  it  was  the  duty  of  the 
witness,  not  only  not  to  doubt  whether  he  would  take  any  action  in  relation  to  the 
matter,  but  to  report  the  same  as  a  grave  offence  on  the  part  of  the  accused ;  and 
his  determination  or  doubt  whether  he  would  take  such  action,  or  make  such 
report,  are  facts  not  only  admissible  but  material  evidence,  that  at  the  time  to 
which  the  question  relates  he  did  not  believe  there  had  been  any  such  disobedience 
on  the  part  of  the  accused,  and  thereupon  respectfully  requests  to  have  this  protest 
entered  on  the  proceedings  of  the  Court  against  the  exclusion  of  the  question 
referred  to. 

"F.  J.  PORTER,  Major  General." 

The  Judge  Advocate  said :  The  witness  requests  the  permission  of  the  Court  to 
answer  the  question  referred  to  in  the  protest  just  read. 

The  accused  made  no  objection. 

The  Court  was  cleared  and  after  sometime  opened,  and  the  Judge  Advocate  an- 
nounced the  decision  to  be  that  the  witness  have  permission  to  answer  the  question. 
AVhen  the  witness  objected  to  the  question  for  irrelevancy,  his  objection  is  sus- 
tained. After  the  protest  is  heard  by  him  and  the  Court,  f^d  he  requested  to  be 
permitted  to  answer  the  question,  it  was  decided,  although  still  as  far  as  is  known 
in  the  opinion  of  the  Court,  irrelevant  to  allow  him  the  porniission.  As  the 
Court  had  no  authority  to  receive  any  but  relevant  testimony,  the  result  of  this 
ruling  was  to  leave  the  relevancy  or  irrelevancy  of  the  question  to  the  decision 
of  the  witness. 


III. 

The  same  course  was  adopted  by  the  Court  in  regard  to  another  question  put  by 
Porter  to  the  same  witness.     (P.  24.) 

IV. 

General  McClellan,  whose  evidence  was  strongly  in  favor  of  Porter,  was  asked 
by  one  of  the  Court,  and  evidently  witli  a  view  to  impair  its  effect,  whether  his 
feelings  towards  General  Pope  were  not  unfriendly.  The  gross  indelicacj*  of  the 
inquiry,  caused  another  member  of  the  Court  to  object  to  it,  and  it  was  then  with- 
drawn. Porter  by  his  counsel  protested  against  its  withdrawal,  because  as  it  was 
apparent  that  the  member  of  the  Court  propounding  it,  was  under  the  imfiression 
that  such  feelings  existed,  it  was  Porter's  right  to  have  the  truth  of  the  imputa- 
tion tested,  and  the  right  of  the  witness  to  he  permitted  to  exhunorato  himself 
from  it.  But  the  Court  decided  tiiat  it  should  not  be  answered,  and  neither  the 
question,  nor  what  occurred  in  relation  to  it,  were  permitted  to  appear  in  the 
Piecord. 


In  the  Pieply,  (p.  11.)  it  is  said  that  the  writer  did  not  know  what,  if  anything 
had  been  done,  for  Lieut  Colonel  Thomas  C.  H.  Smith.  He  has  since  ascertained 
that  he  was  appointed  a  Brigadier  General,  to  date  from  the  29th  of  November, 
18G2.  The  Court  was  opened  on  the  25th  of  that  month.  On  what  day  the  ap- 
pointment was  made  he  is  not  informed,  but  it  must  have  been  after  he  gave 
this  testimony  against  Porter,  on  the  11th  of  December,  in  the  same  year,  as  at 
that  time  he  stated  himself  to  be  a  Lieutenant  Colonel,  under  a  corumission  dated 
the  24th  of  August,  1861.  A.s  he  admitted  upon  his  examination  that  he  had 
never  been  in  any  army  before  that  date,  and  never  received  a  military  educa- 
tion, and  never  was  in  a  battle  prior  to  Pope's  Virginia  campaign,  and  there 
being  nothing  to  show  that  he  displayed  there  either  scientific  knowledge  or 
conspicuous  valor,  it  must  be  true  that  his  promotion  to  the  high  rank  of  Gen- 
eral was  not  a  reward  far  gallant  service  in  the  flehl  or  distinguishe'i  militury 
ability.  But  looking  to  the  time  when  he  gave  his  evidence  in  Porter's  case,  and 
the  character  of  that  evidence,  and  his  conduct  in  publishing  and  circulating  his 
testimony  and  Pope's,  and  lioberts'  only,  without  any  other  part  of  the  proof,  it 
is  left  to  the  reader  to  decide  for  himself  to  what  cause  it  is  to  be  referred. 


VI. 

The  Judge  Advocate  considers  as  immaterial  the  testimony  of  Porter's 
"former  services  and  character  for  faithfulness  and  cffie-ioncy  as  an  officer," 
although  he  admits  it  to  be  "kull  and  kaknkst,"  because  such  evidence,  he 
says,  '-is  held  to  beentitled  to  little  weight  except  in  doubtful  ca^es,"  and  tu  no 
weight  when  "it  comes  into  conflict  with  evidence  that  is  both  positive  and 
rt'liable." 

That  no  such  evidence  as  the  latter  was  given  agaiii-t  Porter  the  reader  has  seen 
in  The  Re:^ly.     Lie  will  also  huve  icor.  that  th< ■  oat.o  Z::iAde  again&t  h.zz.  by  the 


87 

Government,  in  the  view  of  an  impartial  and  fair  mind,  VN'as  not  eve7i  a  doubtful 
one.  It  is  due,  however,  to  Porter,  that  it  should  he  known  how  strong  were  ths 
testimonials  to  his  former  "faithfulness  and  efficiency"  hy  those  who  had  known 
him  longest  and  best. 

1.  Mnjor  General  Burnside. — "I  have  never  seen  anything  to  lead  me  to  think 
that  he  was  anything  but  a  zkalous,  faithful  axd  loyal  offickr  "     (P.  181.) 

2.  General  Reynolds. — "I  have  had  opportunities  to  judge  of  General  Porter's 
conduct,  and   I  have  always  considered  him  an    enkrgetic,    faithful  and 

DKVOTED    OFFICER."       (P.   170.) 

3.  General  Morell. — "I  do  not  think  that  he  ever  failed  to  do  his  duty." 
(P.  14.  0 

4.  General  Svkes. — He  was  asked,  did  you  ever  see  in  Porter  "  any  slackness 
to  do  his  duty,  any  evidence  of  a  disposition  to  fail  his  commanding  officer  or  his 
country,"  and  answered: 

No ;  I  never  have.  General  Porter  is  an  officer  whose  zeal  is  so  well  estahlished 
that  I  hardly  see  the  necessity  of  that  question.  I  would  like  to  aid  that  General 
Porter's  foresight,  his  providence  for  the  wants  of  his  command,  and  his  attention 
to  all  the  minutiae  of  his  command,  are  such  and  so  great  that  I  have  often 
thought  that  he  relied  or  trusted  too  little  to  the  capacity  of  his  division  com- 
m.inders.     He  seemed  to  do  everything  himself.     (P.   177.) 

5.  General  Bidierfield.—CRohQTts  had  said  that  Major  General  Kearney  had 
told  him  that  Porter  •'  would  fail  General  Pope.")  Butterfield  was  asked  whether 
he  hid  had  conversations  with  Kearney  in  relation  to  Porter,  and  said,  "fre- 
quently," and  that  he  always  spoke  in  the  highkst  terms  of  General   Porlfr, 

both  as  A  BRAVE    OFFICKR   AND   A   GENTLEMAN.  AND  AS  A  HARD    WORKER."       And 

Butterfield  also  staled  for  himself,  that  he  never  saw  in  anything  that  he  did  or 
said  before,  or  when  it  was  understood  that  he  was  to  come  under  Pope's  com- 
mand, any  evidence  of  an  indisposition  to  be  faiiliful  to  General  Pope  and  to  Ids 
country. 

6.  Maj-jr  General  McClellan,  under  whose  immediate  eye  Porter  was  during 
his  command  of  the  Army  of  the  Potomac,  said,  that  from  what  he  saw  of  his 
conduct,  or  from  what  he  heard  him  say,  after  he  knew  that  he  was  to  go  to  the 
assistance  of  Pope,  he  did,  in  his  opinion,  "all  that  an  energetic  and 
ZKALOUS  AND  PATRIOTIC  OFFICER  COULD  HAVE  DONE,"  and  that  he  never  had 
any  reason  whatever  at  any  time  after  he  received  notice  that  he  was  to  go  to 
Pope's  aid,  "to  believe  that  he  would  fail  General  Pope  or  the  coun- 
try IN  the  discharge  of  his  duty."     (P.  196.) 


VII. 

The  very  material  evidence  on  one  point,  of  Colonel  George  D.  Kuggles,  was 
omitted  in  the  Keply — it  is  here  given  : 

He  says,  that  he  was  in  a  room  of  the  headquarters  of  General  Pope,  at  Fairfax 
Court  House,  on  the  morning  of  the  2d  of  September,  1862,  that  Porter  and  Gene- 


88 

ral  Pope  were  in  the  room,  and  that  "I  was  engngecl  at  the  time  (he  was  Pope's 
Assistant  Adjutant  General,  and  chief  of  staff,)  writing  orders  for  ihe  positions  of 
troops."  "While  I  was  writing  these  orders,  General  Porter  and  General  Pope 
had  a  conversation  lasting  about  20  minutes." 

♦'  Whilst  this  time,  studiously  avoiding  overhearing  the  conversation,  I  heard 
scraps  enough  of  it  to  know  they  we/'e  talking  about  the  incidents  '>f  a  few  days  pre- 
vious. At  the  conclusion  of  the  interview.  General  Pope  and  Porter  got  up,  and 
I  heard  General  Pope  say  to  General  Porter,  that  his  explanations  were  satisfac- 
tory with  the  exception  of  the  matter  of  the  one  brigade.  1  think  he  said,  "  EX- 
TiRELY  SATisFAorOKY,"  though  as  to  the  word  entirely,  I  can  not  swear  posi- 
tively." "I  think  General  Porter  replied,  "that  (the  brigade)  can  be  easily 
explaned,"  though  I  am  not  positive  about  his  answer.  He  also  slated  that  his 
recollection  was,  that  he  reminded  Pope  of  this  "conversation  on  the  5th  or  6th 
of  September,  1862."  The  Judge  Advocate,  in  order  to  destroy  the  force  of  this 
evidence,  succeeded  only  in  getting  the  witness  to  repeat  what  he  had  said  before, 
that  he  was  not  positive  in  his  recollection  of  the  latter  fact,  stated  by  him,  but 
that  with  regard  to  the  other.  Pope's  telling  Porter  that  he  was  satisfied,  he  was 
positive  and  certain.  (Pp.  Ibo,  156.)  JS'or  did  Pope,  who  was  examined  before 
in  regard  to  it,  den}'-  it,  on  the  contrary,  he  virtually  admitted  it.  He  said  that 
he  remembered  that  upon  the  occasion  referred  to,  "I  told  General  Porter  that 
1  had  not  reported  him  to  the  Department  in  Washington,  and  a.s  matters  stood, 
1  thought  /  should  not  f.'ike  any  action  in  reference  to  his  case,  though  1  felt  bound 
to  do  so  in  the  case  of  Gritfin.  And  when  asked  upon  cross-examination  whether 
he  remembered  the  conversation  between  himself  and  Ruirgles,  testified  to  by  the 
latter,  he  only  said  he  had"  "■  no rem/'mheranre  of  it,"  but  was  "not  certain  that  he 
had  not,"  but  was  "very  certain  that  Colonel  Rugglcs  never  stated  a  thing  of  that 
kind  to  him,  although  he  was  "not  prepared  to  swear  that  he  did  not.'"  The 
bearing  of  Ruggles'  evidence  upon  the  accuracy,  if  nothing  else,  of  General  Pope's 
testimonj',  and  its  conclusiveness  of  the  fact,  that  Pope,  when  he  was  made  ac- 
quainted by  Porter  with  all  the  circumstances  connected  with  his  conduct  under 
Pope's  several  orders,  expressed  himself  saticrtied,  cannot  fail  to  be  apparent  to  the 
reader,  and  fatal  in  any  fair  judgment,  to  the  finding  of  the  Court. 


